The International Journal of Psychosocial Rehabilitation

From the Discipline of Law, a Frontier for Psychiatric Rehabilitation
Priscilla Ferrazzi
Department of Occupational Therapy, University of Alberta, Edmonton, Alberta, Canada

Ferrazzi (2018)  From the discipline of law, a frontier for psychiatric rehabilitation
 International Journal of Psychosocial Rehabilitation. Vol 22 (1) 15-28

Corresponding Author:
Priscilla Ferrazzi
University of Alberta
Faculty of Rehabilitation Medicine
8205 – 114 Street
2-64 Corbett Hall, Edmonton
Alberta, T6G 2G4, Canada

While largely unknown to the field of psychiatric rehabilitation, therapeutic jurisprudence emerged from the separate discipline of law as a theoretical approach that maximizes the law’s potential for therapeutic outcomes and provides a “philosophic foundation” for criminal court responses to people with mental illness. Although a rehabilitative response is its key animating principle, therapeutic jurisprudence was developed with little reference to—or mutual benefit from—psychiatric rehabilitation. This paper describes the legal concept of therapeutic jurisprudence and criminal court mental health initiatives from the perspective of psychiatric rehabilitation. It argues that these developments represent an interdisciplinary opportunity for psychiatric rehabilitation.
Key Words: Therapeutic jurisprudence, criminal court mental health initiatives, rehabilitation science, psychiatric rehabilitation, recovery, interdisciplinary

Although psychiatric rehabilitation emerged as an important field of scholarship and practice as recently as the 1970s and 1980s (Anthony & Farkas, 2009), it is now considered among the preferred methods for helping people with serious psychiatric disabilities (Farkas & Anthony, 2010). Psychiatric rehabilitation (also known as mental health rehabilitation or MHR) promotes recovery by helping people with mental health conditions achieve and/or regain meaningful lives, including full community integration and improved quality of life (Anthony & Farkas, 2009). It is a field—and a service—that belongs within the larger ambit of rehabilitation, a discipline of health science. Rehabilitation from this discipline perspective, aims to “minimize disability and maximize independence” by addressing impairments caused by illness or injury (McPherson, Gibson & Leplège, 2015, p.4). While rehabilitation in health science is known to be interdisciplinary (Tate, 2006; or a “hybrid” discipline, Siegert, McPherson & Dean, 2005), its relationship and overlap with disciplines outside of health and social care is far less clear.

Within the discipline of law, meanwhile, criminal court mental health initiatives—in particular, specialized mental health courts and related mental health diversion programs—are legal initiatives intended to provide a “rehabilitative response to what would otherwise be criminally sanctioned behaviour” (Schneider, 2010, p. 202; emphasis added). These initiatives arose in North America beginning in the late 1980s (Hora, 2011) as a means to divert some people with mental illness away from prosecution and its risk of incarceration to mental health care alternatives based in communities (Redlich, Hoover, Summers & Steadman 2010). Not long after, the legal theoretical notion of “therapeutic jurisprudence” emerged and, among its other impacts on the law, soon became a “philosophic foundation” for these mental health initiatives and other problem-solving courts (Winick, 2013). Therapeutic jurisprudence’s central aim is to maximize the law’s potential for therapeutic outcomes (Wexler & Winick 1996). To achieve this goal, therapeutic jurisprudence was conceived of as a fundamentally “interdisciplinary” endeavour (Wexler, 1992).

Yet, while an effective rehabilitative response is central to therapeutic jurisprudence and to the increasing numbers of criminal court mental health initiatives around the world, contemporary ideas from psychiatric rehabilitation appear to have played little role in their conceptual or practical development (Ferrazzi & Krupa, 2016a). Despite claims to interdisciplinarity by both therapeutic jurisprudence and psychiatric rehabilitation, little substantial overlap has been evident during the almost simultaneous emergence of these two fields in the past four decades. Very few studies of mental health courts, for example, consider the impact of these court initiatives on from the perspective of those enrolled in them (Canada & Ray, 2016). This lack of interaction becomes easier to see when distinctions are revealed between what is meant by “rehabilitation” in the contexts of both offender rehabilitation (in the criminological sense) and psychiatric rehabilitation (in the context of health science).

This paper describes therapeutic jurisprudence and mental health criminal court diversion initiatives in the context of psychiatric rehabilitation. It argues that greater effort to integrate therapeutic jurisprudence thinking with psychiatric rehabilitation research and practice could  not only benefit the law (in the context of mental health and criminal justice) but also build an interdisciplinary bridge to broaden and advance psychiatric rehabilitation research and practice beyond health and social care, creating opportunities in the arena of criminal justice for psychiatric rehabilitation scholars and professionals, and involving judges, lawyers and other court workers as “change agents” in this context,

Understanding offender rehabilitation
The word “rehabilitation” in the context of criminal justice defies easy definition, and talk of offender rehabilitation among academics, policy makers or practitioners often makes it “far from clear whether we are all speaking the same language” (Raynor & Robinson, 2005, p. 2). For most researchers and practitioners working in the world of criminal justice today, offender rehabilitation—although “borrowed” from the wider health science literature (Ward & Maruna, 2007)—does not primarily aim to mitigate impairments caused by disabilities as does health care rehabilitation but, rather, to improve the likelihood of “desistance from crime” by criminal offenders. In its main incarnation today, offender rehabilitation is intended primarily for the benefit of the community rather than for the benefit of offenders themselves (Ward & Maruna, 2007). This currently orthodox approach to offender rehabilitation—sometimes called correctional rehabilitation—locates “the causes of offending in individual offenders, rather than in external factors” so that their character, morality, personality, psychological makeup and choices are the target of reform rather than their social, economic or environmental circumstances (Raynor & Robinson, 2005, p. 6).

The principal model associated with this approach is known as the risk-need-responsivity model (providing treatment according to the risk posed by offenders to meet criminogenic needs according to their responsivity to the treatment), and it is aimed at detecting, managing and reducing the extent to which individuals are a threat to the community as cost effectively as possible (Ward & Maruna, 2007). In this model, high-risk offenders receive greater levels of rehabilitation intensity and lower risk offenders receive less. While some overlap exists between offender rehabilitation as its currently practiced and psychiatric rehabilitation (especially for the many criminal offenders simultaneously affected by issues of mental illness and addiction), offender rehabilitation in the risk-need-responsivity model subjugates the rights of the individual to a more elevated need to safeguard the rights of the community (Birgden, 2008).

The distinct meaning of psychiatric rehabilitation
Meanwhile, an understanding of “rehabilitation” in the context of psychiatric rehabilitation is decidedly distinct from its meaning in the context of offender rehabilitation. Psychiatric rehabilitation is a mental health care field (i.e., a set of values, techniques, programs and outcome expectations; Farkas & Anthony, 2010) that properly belongs in the broader health care discipline of rehabilitation science. While a universally agreed definition of rehabilitation in this sense is also somewhat elusive (Wade & de Jong, 2000), one general description characterizes it as a dynamic process aimed at minimizing the consequences of disease or injury and maximizing independence services (McPherson et al., 2015). This discipline of rehabilitation emerged in the latter half of the twentieth century as a response to more people surviving debilitating illness and injury (especially in the context of World War II) and following improved medical care and the development of antibiotics (McPherson et al., 2015). It arose mainly as a response to subsequent challenges facing health and social services (McPherson et al., 2015) and following recognition that medical services were not sufficiently attentive to the long-term consequences of disease (Wade, 2016). It developed as a “hybrid discipline” with theoretical roots in its parent healthcare disciplines of medicine, nursing, occupational therapy, physiotherapy and psychology (McPherson et al., 2015). Clarity around the definition and aim of rehabilitation in health care was substantially advanced by the International Classification of Functioning, Disability and Health of the World Health Organization first published in 1980 (Wade & de Jong, 2000) which describes rehabilitation practice in terms of efforts to enhance participation.

Within this wider discipline of health science rehabilitation, the field and service of psychiatric rehabilitation emerged following post-World War II psychiatric reforms (promoted by the World Health Organization) that shifted away from previous asylum-and-hospital-based responses to people with mental illness to rehabilitation approaches aimed at helping these people to remain in their communities (Novella, 2008). It expanded rapidly in the 1970s and 1980s and quickly became an important arena of scholarship and practice to help “individuals develop skills and access resources needed to increase their capacity to be successful and satisfied in the living, working, learning, and social environments of their choice.” (Anthony & Farkas, 2009, p. 9). In 2007, the United States Psychiatric Rehabilitation Association—the major professional association of the field of psychiatric rehabilitation—adopted a definition of psychiatric rehabilitation as rehabilitation that “promotes recovery, full community integration, and improved quality of life for persons who have been diagnosed with any mental health condition that seriously impairs their ability to lead meaningful lives. Psychiatric rehabilitation services are collaborative, person directed, and individualized” (cited in Anthony & Farkas, 2009).

In recent decades, psychiatric rehabilitation has been profoundly affected by the emergence of the concept of recovery (Slade, Adams & O’Hagan, 2012), now considered “the guiding principle for 21st century mental health services throughout the Anglophone world” (Slade, 2009, p. 367).  Recovery has been officially embraced by Canada, the United States, Australia, England, Israel and others as a philosophical basis for mental health services and rehabilitation (Ramon et al., 2009; Mental Health Commission of Canada, 2012; Senate of Canada Standing Committee on Social Affairs, Science and Technology, 2006) and it is acknowledged as central to international mental health policy (Davidson & Roe, 2007; Davidson et al., 2009; Ramon et al., 2009; Slade et al., 2012). The psychiatric rehabilitation concept of recovery is described as “a deeply personal, unique process of changing one’s attitudes, values, feelings, goals, skills, and/or roles. It’s a way of living a satisfying, hopeful, and contributing life even with limitations caused by illness. It involves the development of new meaning and purpose in one’s life as one grows beyond the catastrophic effects of mental illness.” (Anthony, 1993, p. 14). It has also been characterized as “the lived or real-life experience of people as they accept and overcome the challenge of the (mental) disability” (Deegan, 1988, p. 11). While a clear understanding of the processes and stages involved in recovery is still being explored (Silverstein & Bellack, 2008), it differs considerably from the traditional clinical approaches to psychiatric rehabilitation (Slade et al., 2012).

Mental illness in the criminal justice system

At the same time that psychiatric rehabilitation was gaining currency following the 1950s psychiatric reforms and deinstitutionalization, these same reforms had other consequences, according to many researchers: More people with mental illness found themselves in communities where the justice and health systems were ill equipped to respond to them, and their risk of being arrested and jailed for relatively minor offenses was significantly increased (Abramson, 1972; Hartford, Carey, & Mendonca, 2007; Seltzer, 2005; Teplin, 1984). Abramson (1972) described this phenomenon as the “criminalization of mentally disordered behaviour,” and many subsequent researchers and practitioners have embraced the idea, linking its causes to increased numbers of people with mental illness in the community, police responses to this population, and limited community access to treatment, among others reasons (Abramson, 1972; Boyce, Rotenberg & Karam, 2015; Ryan, Brown, & Watanabe-Galloway, 2010; Schneider, 2010; Seltzer, 2005; but see Peterson et al., 2010 for evidence that this view may be overly simplistic). One way or the other, following this period disproportionate numbers of people with mental health conditions have been imprisoned in penitentiaries (Butler & Allnutt, 2003; Office of the Correctional Investigator, 2010a; Ogloff, 2002; Steadman et al., 2009) where access to mental health treatment is often limited or unavailable (Beck, 2000; Davis et al., 2012).

In Canada, for example, the proportion of people with mental illness within the penitentiary population is far larger than that of the general population (Office of the Correctional Investigator, 2010a), and one-in-four new admissions to federal corrections present with some form of mental illness (Office of the Correctional Investigator, 2010b). Eleven percent of Canadian federal offenders have a mental health diagnosis at admission, an increase of 71% since 1997 (Office of the Correctional Investigator, 2010a), and the proportion of offenders with mental health needs identified at intake has doubled between 1997 and 2008 (Office of the Correctional Investigator, 2012).  In the United States, 2 million people with serious mental illness are jailed each year, and 14.5% of males and 31.0% of females in U.S. jails have at least one serious mental illness (Steadman et al., 2009). Canadian penitentiaries, meanwhile, suffer from a lack of capacity to offer adequate treatment options for people with mental illness (Office of the Correctional Investigator, 2012). Inmates with serious mental illness are incarcerated longer, are less likely to qualify for community supervision, are more likely to have their parole revoked, and have higher rates of reoffending (Davis et al., 2012). A lack of treatment options in the U.S correctional system make matters worse (Davis et al., 2012). One study reviewed found 43 % of state prisoners with mental illness who were set to be released within 12 months still had not received any mental health treatment in jail (Beck, 2000). Some researchers expressed concern that incarceration had become an ersatz “alternative to treatment” (Lange et al., 2011, p. 201) and psychiatric rehabilitation.

Therapeutic jurisprudence and criminal court mental health initiatives
Faced with the growing numbers of people with mental illness swept up in the justice system, courts needed an appropriate legal response. Beginning in the 1990s throughout North America and elsewhere, criminal court mental health initiatives were introduced (Schneider, 2010). These initiatives—namely specialized courts known as mental health courts as well as related programs collectively known as “court diversion”—are formalized efforts at different stages in the criminal justice process (Lange et al., 2011) to identify and divert people with mental illness away from courts and jails and into the community mental health care system (Petrila & Redlich, 2008; Redlich, 2007; Redlich et al., 2010; Schneider et al., 2007). Court diversion and mental health courts generally consist of mental health personnel who work with the court, the prosecutor and defence lawyers to facilitate enrolling a person with a mental illness into an appropriate mental health treatment program.  No longer simply gate keepers to health and other services, specialized courts for responding to accused people with a mental illness “place judges squarely in the centre of treatment planning” (Petrila, 2004, p. 8). Typically, cases handled by criminal court mental health initiatives remain under the court’s jurisdiction for a short while to ensure that the individual is linked and adhering to treatment services before charges are withdrawn or stayed.

Therapeutic jurisprudence emerged within the discipline of law to become, among other things, the “theoretical” foundation for criminal court mental health initiatives as well as for other “problem-solving courts” (Winick, 2003; Winick, 2013) such as drug courts. Therapeutic jurisprudence views legal rules and their application as social forces that can be changed in ways that minimize their anti-therapeutic consequences and maximize their therapeutic effects (Winick, 2013). That is, therapeutic jurisprudence hopes to maximize therapeutic outcomes in law by addressing the goals of both criminal justice and mental health at the same time (Wexler & Winick, 1996). The origins of the approach have been variously described as emerging from the civil rights movement of the 1960s and 1970s (Arrigo & Tasca, 1999) to traditional Indigenous wellness-and-justice approaches found in Canada, the United States, Australia and New Zealand (Bahkt, 2005; Winick & Wexler, 2003), and it has since become synonymous with an interdisciplinary, therapeutic approach to the law in general (Winick, 2003). The influence of therapeutic jurisprudence within legal circles has grown steadily since its inception (Freckelton, 2008; Wexler, 2008; Winick, 2013), and it is considered an important element in the “comprehensive law movement” toward a more interdisciplinary, integrated, humanistic and restorative legal approach (Daicoff, 2006).

Parallel but separate paths
Yet, while the emergence of therapeutic jurisprudence scholarship and criminal court mental health initiatives coincided in time with the appearance of many key developments in psychiatric rehabilitation (including the ascendency of the recovery model), they appear to have taken little notice of these parallel advances. For example, despite therapeutic jurisprudence’s recognition of the central role for rehabilitation and its insistence on interdisciplinary synthesis, especially involving psychiatry, psychology, criminology, and social work (Wexler, 2008), therapeutic jurisprudence scholarship and the creation of criminal court mental health initiatives (therapeutic jurisprudence’s practical incarnation) owe most of their development to the discipline of law (Ferrazzi & Krupa, 2016): While therapeutic jurisprudence is intended to encourage, as much as possible, a “beneficial impact” for people with mental illness who are before the courts, the traditional goals of the criminal justice system “such as punishment and protection of the public” remains paramount (Schneider et al., 2007, pp. 43-44).  What this has meant, in practical terms, is that therapeutic jurisprudence is often criticized for its lack of clarity concerning the meaning of rehabilitation in this context: Many scholars accuse therapeutic jurisprudence of failing to properly define what is “therapeutic” or “anti-therapeutic” in any meaningful or precise way (Roderick & Krumholz, 2006).  

Similarly, the goals of criminal court mental health initiatives tend to be viewed from the perspective of mainly justice objectives first, and if therapeutic outcomes are considered, to discuss primarily clinical metrics such as mental health service utilization, substance abuse, etc. (see, for e.g., Frailing, 2010; Hiday & Ray, 2010; Moore & Hiday, 2006; O’Keefe, 2006;  Steadman et al., 2011; Wolff & Pogorzelski, 2005). Even now, psychiatric rehabilitation thinking and measures of recovery remain not often considered relative to considerations of criminal justice metrics (Kopelovich, Yanos, Pratt & Koerner, 2013; Pratt, Koerner, Alexander, Yanos & Kopelovich 2013) when implementing new mental health court and court diversion programs or evaluating existing ones (e.g., Lange, Rehm & Popova, 2011). For instance, a recent review of these initiatives in the United States, described these interventions as functioning mainly as a legal means of “establishing an enduring treatment connection” between people with mental illness and existing mental health care providers (Epperson et al., 2014, p. 428) rather than integrating court diversion efforts with an integrated rehabilitation component. This shortcoming is evident in the predominance of studies that seek to evaluate the effectiveness of mental health court diversion initiatives by relying mainly on justice criteria (e.g., reduced recidivism, less jail time) and, less frequently, objective clinical outcomes (e.g., reduced substance abuse, less mental health service use) as assessment measures (James, 2010; Lange et al., 2011; Richardson & McSherry, 2010; Ryan, Brown & Watanabe-Galloway, 2010). The evaluation literature, in other words, focuses “primarily on criminal justice outcomes, such as re-arrest, jail days, or injuries to officers during ‘mental health calls’ to the exclusion of mental health outcomes” (Epperson et al., 2014, p. 429). 

Benefits from integrating psychiatric rehabilitation and therapeutic jurisprudence
The development of therapeutic jurisprudence and criminal court mental health initiatives show the issues faced by criminal law and criminal courts have widened to include many of those usually considered to belong to the civil mental health and social security system (Carver, 2011). It makes sense, therefore, that the key concepts from these systems are undoubtedly important to the arsenal of criminal justice responses to people with mental illness. Integrating a thorough comprehension of psychiatric rehabilitation—thinking and practice—in future efforts to develop and evaluate mental health court diversion initiatives promises benefits for both therapeutic jurisprudence and rehabilitation science alike.

For therapeutic jurisprudence, help in defining what’s therapeutic
One reason to encourage a more thorough consideration of developments in psychiatric rehabilitation within the ambit of therapeutic jurisprudence is the likelihood that the former could provide therapeutic jurisprudence with a critical answer to a long-standing criticism: a useful definition of “therapeutic.” In many respects, this confusion may arise from a lack of clarity in therapeutic jurisprudence surrounding the meaning of rehabilitation and the distinctive definitions of the concept belonging to both offender rehabilitation and psychiatric rehabilitation. In general terms, the goal of the discipline of rehabilitation in health science is to maximize “functional ability” (Barnes & Ward, 2000, p. 4), improving quality of life for people with disabilities (Tate, 2006). Within psychiatric rehabilitation, recovery’s focus on the lived experiences of individuals distinguishes it from traditional clinical approaches (Slade et al., 2012) and dispels concerns about “who decides what represents a therapeutic outcome” (Petrila, 1993, p. 881). Psychiatric rehabilitation and recovery offer a generalized normative framework that directs therapeutic practice and decision-making by focusing on values beyond clinical condition that maximize psychological and social functional ability (Barnes & Ward, 2000) to improve quality of life (Anthony & Farkas, 2009)—values that include self-determination, independence, and empowerment (Anthony, 1993). Thus, psychiatric rehabilitation provides therapeutic jurisprudence with a practical definition of therapeutic that remains flexible enough for particular socio-political input and research while mitigating concerns about paternalistic definitions offered by medical authorities and others (Ferrazzi & Krupa, 2016). Similarly, recovery-styled consumer participation—including individual discussion and engagement as part of the decision-making—has recently been recognized as a valued approach that should be adopted by criminal court mental health initiatives (McDaniel, 2015).

For psychiatric rehabilitation research, a frontier in theory

Rehabilitation, as a health care discipline, is often criticized for its lack of a theoretical foundation (Siegert et al., 2005; McPherson et al., 2015).  Although the World Health Organization’s International Classification of Functioning, Disability and Health (World Health Organization, 2001) is frequently described as its “framework” (McPherson, 2006; McPherson et al., 2015), the characteristics of disability define it as a “complex problem” involving multiple factors linked by non-linear relationships (Wade, 2016). This has made an overarching theory of rehabilitation elusive. Since theory building (and subsequent theory testing) is essential to scientific progress, neglecting theory has been blamed for slowing progress in rehabilitation research (Siegert et al., 2005). Psychiatric rehabilitation research, in particular, remains at an early stage in understanding the interventions that constitute effective rehabilitation (Farkas & Anthony, 2010). Recently, McPherson and colleagues (2015) argued that one solution is to abandon quixotic efforts to find a grand, unifying theory of rehabilitation in favour of developing “a range of theories to make sense of what rehabilitation could and should be” (p. 9).

Therapeutic jurisprudence, meanwhile, has been described as a legal theory (Birgden, 2004, 2009; Birgden & Perlin, 2009; Hora et al., 1999) affecting “problem-solving” courts, especially in the context of mental health. It has also been described as a theoretical framework, (Campbell, 2010; Goldberg, 2011), and as a heuristic “methodological guide” for qualitative research examining criminal court mental health initiatives (Ferrazzi & Krupa, 2015). As psychiatric rehabilitation research is essential for translating findings of basic clinical research into effective “systems of care” (Lehman, 1998, p. 199), therapeutic jurisprudence—although properly belonging within the ambit of law—can usefully be considered an effective theory for not only advancing this important research cause but for improving psychiatric rehabilitation practice. In the absence of a clearer theoretical foundation, therapeutic jurisprudence provides a framework to advance psychiatric rehabilitation research for better understanding what we are, can and should be doing for the growing numbers of people with mental illness caught in the criminal justice system.

For psychiatric rehabilitation professionals, a frontier in practice
Despite strides in contemporary attitudes regarding illness and injury, the concept of rehabilitation remains widely associated with particular fields of practice (e.g., physiotherapy; McPherson, 2006) focused on treatment and improving a patients’ medical status and functioning. In general terms, most healthcare workers remain unaware of the biopsychosocial model of illness (Wade, 2016). Psychiatric rehabilitation, meanwhile, is expected to operate “at the intersection between the individual, his/her personal network, and the broader social context” (Vaddadi, 2010, p. 95). The role of psychiatric rehabilitation professionals is to help people with mental illness identify the roles they want in the wider social world and to link them to opportunities available within their communities where these roles can be realized (Farkas & Anthony, 2010). At the same time, they must be in a position to create and maintain a strong partnership with users to ensure their participation in the psychiatric rehabilitation process (Farkas & Anthony, 2010). Thus, psychiatric rehabilitation professionals are above all “required to be active in communities, beyond the organizational boundaries of mental health care, in order to promote and support users’ (re)integration into society” (Iancu et al., 2015, p.175).

Workers involved in therapeutic jurisprudence-oriented criminal court mental health diversion initiatives extend the ambit of health and social care into the realm of law. They include “a number of partners and a variety of professionals” (Schneider, Crocker & Leclair, 2016, p. 318). Judges, for example, play a transformed role in these “problem-solving” court settings, not merely resolving cases but using judicial authority to motivate individuals to accept needed services while monitoring compliance and progress as well as educating the community (Winnick & Wexler, 2003). They become “advocates” for the people before them with and for increased community resources to deal with their problem, liaising with and leading other community agencies and treatment providers (Winick, 2003; Petrila & Redlich, 2008). Similarly, criminal lawyers involved in therapeutic jurisprudence-oriented practice adopt a consciously rehabilitative role as a “change agent,” affecting a client’s therapeutic response by building relationships of respect and trust (Wexler, 2005). “Case managers,” who monitor progress and compliance, walk a line “between the legal and treatment worlds” as “boundary spanners” to facilitate cooperation between other professionals in each (Schneider, Crocker & Leclair, 2016, p. 318). These therapeutic jurisprudence-oriented courts, in short, can be considered an important stage “in the therapeutic drama” (Winick, 2003, p. 1060) and the many actors, among other roles, play parts equivalent to psychiatric rehabilitation professionals realizing a psychiatric rehabilitation process “to develop a personal connection with individuals with serious mental illnesses to facilitate, support or teach individuals how to choose, get, and keep a preferred role valued by society” (Farkas & Anthony, 2010, p. 116). Courtrooms, in other words, are important new workplaces for psychiatric rehabilitation professionals representing multiple disciplines.

While psychiatric rehabilitation—and the notion of recovery, in particular—is recognized as central to understanding therapeutic approaches to improving mental health in contexts outside of the discipline of law and criminal justice, therapeutic jurisprudence scholars have  been slow to recognize these developments (Ferrazzi & Krupa, 2016). In particular, the transformative shift from a biomedical focus to a psychosocial approach that incorporates such values as self-determination, independence, and empowerment is not frequently considered in scholarship and practice relevant to criminal court mental health initiatives. More scholarship and practical effort is needed to change this.

 Psychiatric rehabilitation can provide an avenue for improving the theoretical and practical validity of therapeutic jurisprudence by settling the meaning of “rehabilitation” in this criminal justice context and clarifying the definition of therapeutic (thus, contributing to the development of a normative framework to guide therapeutic jurisprudence’s law reform agenda). Importantly, therapeutic jurisprudence also benefits psychiatric rehabilitation scholarship through the articulation of a sound theoretical foundation for psychiatric rehabilitation research in this context. Further, therapeutic jurisprudence’s expansion of therapeutic aims into court practices and directly into the jobs of court-associated professionals—such as judges, lawyers and other court workers—creates a new arena of psychiatric rehabilitation practice. Understanding the extent and nature of these varied professional psychiatric rehabilitation roles at different stages of criminal court mental health initiatives may be crucial to improving the lives of people with mental illness caught in the justice system. More work is needed to understand the significance of therapeutic jurisprudence as a field of scholarship and a frontier for practice belonging not only to the discipline of law but also to rehabilitation science and psychiatric rehabilitation.
I am grateful to Peter Christie for his support.

Funding -None

Conflict of interest: None.


Abrahamson, S. S. (2000). Therapeutic jurisprudence: Issues, analysis, and applications: The appeal of therapeutic jurisprudence. Seattle University Law Review, 24, 223–251.

Abramson, M.F. (1972). The criminalization of mentally disordered behaviour: Possible side-effect of a new mental health law. Hospital and Community Psychiatry, 23, 101-107.

Anthony, W. (1993). Recovery from mental illness: The guiding vision of the mental health service system in the 1990’s. Psychosocial Rehabilitation Journal, 16 (4), 11–23.

Anthony, W. A., & Farkas, M. D. (2009). Primer on the psychiatric rehabilitation process. Boston: Boston University Center for Psychiatric Rehabilitation.

Arrigo, B. A., & Tasca, J. J. (1999). Right to Refuse Treatment, Competency to Be Executed, and Therapeutic Jurisprudence: toward a Systematic Analysis. Law & Psychology Review, 23 (1), 1-47.

Bakht, N. (2005). Problem Solving Courts as Agents of Change. Criminal Law Quarterly, 50, 224-254.

Barnes, P., & Ward, A. B. (2000). Textbook of rehabilitation medicine.  Oxford: Oxford University Press, 391 pp.

Beck, A. J. (2000). State and Federal prisoners returning to the community: Findings from the Bureau of Justice Statistics. Washington, D.C., U.S. Department of Justice, Bureau of Justice Statistics.  Retrieved on October 3, 2014 from

Birgden, A. (2004). Therapeutic jurisprudence and responsivity: Finding the will and the way in offender rehabilitation. Crime, Psychology and Law, 10 (3), 283–295.

Birgden, A. (2008). Offender rehabilitation: A normative framework for forensic psychologists. Psychiatry, Psychology and Law, 15, 450–468.

Birgden, A. (2009). Therapeutic jurisprudence and offender rights: A normative stance is required. Revista Juridica U.P.R., 70, 43–60.

Birgden, A., & Perlin, M. L. (2009). “Where the home in the valley meets the damp dirty prison”: A human rights perspective on therapeutic jurisprudence and the role of forensic psychologists in correctional settings. Aggression and Violent Behavior, 14, 256–263.

Boyce, J., Rotenberg, C., & Karam, M. (2015). Mental health and contact with police in Canada, 2012. Juristat, Statistics Canada, 85-002-x

Butler, T., & Allnutt, S. (2003). Mental illness among New South Wales prisoners.  Matraville, NSW, NSW Corrections Health Services. Retrieved on October 2, 2014 from

Campbell, A. T. (2010). Therapeutic jurisprudence: A framework for evidence-informed health care policymaking. International Journal of Law and Psychiatry, 33, 281–292.

Canada, K. E., & Ray, B. (2016). Mental Health Court Participants’ Perspectives of Success: What Key Outcomes Are We Missing? International Journal of Forensic Mental Health, 15 (4): 352-361.

Coleman, T. and D. Cotton. 2014. Tempo: Police Interactions. A Report Towards Improving Interactions Between Police and People Living with Mental Health Problems. (accessed April 10, 2015).

Daicoff, S. (2006). Law as a healing profession: The “Comprehensive Law Movement” Pepperdine Dispute Resolution Law Journal, 6 (1), 1–61.

Davidson, L, & Roe, D. (2007).  Recovery from versus recovery in serious mental illness: One strategy for lessening confusion plaguing recovery. Journal of Mental Health, 16 (4), 459–470.

Davidson, L., Tondora, J., Lawless, M.S., O’Connell, M., & Rowe, M. (2009). A practical guide to recovery-oriented practice: Tools for transforming mental health care. New York: Oxford University Press, 272 pp.

Davis, L., Fulginiti, A., Kriegel, L., & Brekke, J.S. (2012). Deinstitutionalization? Where have all the people gone? Current Psychiatry Report, 14, 259–269.

Deegan , P. E . (1988). The lived experience of rehabilitation. Psychosocial Rehabilitation Journal, 11, 11–19.

Epperson, M. W., Wolff, N., Morgan, R. D., Fisher, W. H., Frueh, C., & Huening, J. (2014). Envisioning the next generation of behavioral health and criminal justice interventions. International Journal of Law and Psychiatry, 37, 427–438.

Farkas, M. & Anthony, W. (2010). Psychiatric rehabilitation interventions: A review. International Review of Psychiatry, 22(2), 114-129.

Ferrazzi, P. & Krupa, T. (2015). Therapeutic jurisprudence in health research: Enlisting legal theory as a methodological guide in an interdisciplinary case study of mental health and criminal law. Qualitative Health Research, 25(9), 1300-1311.

Ferrazzi, P. & Krupa, T. (2016a). Mental health rehabilitation in therapeutic jurisprudence: Theoretical improvements. International Journal of Law and Psychiatry, 46, 42-49.

Ferrazzi, P. & Krupa, T. (2016b). “Symptoms of something all around us”: Mental health, Inuit culture, and criminal justice in Arctic communities in Nunavut, Canada. Social Science & Medicine, 165, 159-167.

Frailing, K. (2010). How mental health courts function: Outcomes and observations. International Journal of Law and Psychiatry, 33 (4), 207–213.

Freckelton, I. (2008). Therapeutic jurisprudence misunderstood and misrepresented: The price and risks of influence. Thomas Jefferson Law Review, 30, 575–596.

Goldberg, S. (2011). Problem-solving in Canada’s Courtrooms: A Guide to Therapeutic Justice. Ottawa, National Judicial Institute.

Hartford, K., Carey, R. & Mendonca, J. (2007). Pretrial court diversion of people with mental illness. The Journal of Behavioral Health Services and Research, 34 (2), 198–205.

Hiday, V. A., & Ray, B. R. (2010). Arrests two years after exiting a well-established mental health court. Psychiatric Services, 61, 463–468.

Hora, P. F. (2011). Courting new solutions using problem-solving justice: Key components, guiding principles, strategies, responses,  models,  approaches,  blueprints  and  tool  kits. Chapman Journal of Criminal Justice, 2 (1), 7–52.

Hora, P., Schma, W., & Rosenthal, J. (1999). Therapeutic jurisprudence and the drug court movement: Revolutionizing the criminal justice system’s responses to drug abuse and crime in America. Notre Dame Law Review, 74, 439–538.

Iancu, S.C., Zweekhorst, M.B.M., Veltman, D.J., van Balkom, A.J.L.M., Bunders, J.F.G. (2015). Outsourcing mental health care services? The practice and potential of community-based farms in psychiatric rehabilitation. Community Mental Health, 51,175-184.

ICF, World Health Organization. (2001).

James, D. V. (2010). Diversion of mentally disordered people from the criminal justice system in England and Wales: An overview. International Journal of Law and Psychiatry, 33 (4), 241–248.

Kopelovich, S., Yanos, P., Pratt, C., & Koerner, J. (2013). Procedural justice in mental health courts: Judicial practices, participant perceptions and outcomes related to mental health recovery. International Journal of Law and Psychiatry, 36, 113–120.

Lange, S., Rehm, J., & Popova, S. (2011). The effectiveness of criminal justice diversion initiatives in North America:  A systematic literature review. International Journal of Forensic Mental Health, 10 (3), 200–214.

Lehman, A. F. (1998). The role of mental health service research in promoting effective treatment for adults with schizophrenia. The Journal of Mental Health and Policy and Economics, 1, 199-204.

McDaniel, M.K. (2015). Rehabilitation through empowerment: Adopting the consumer-participation model for treatment planning in mental health courts. Case Western Reserve Law Review, 66 (2), 581- 607.

McPherson, K. (2006). Rehabilitation nursing –A final frontier? International Journal of Nursing Studies, 43, 787-789.

McPherson, K., Gibson, B.E., Leplège, A. (2015). “Rethinking Rehabilitation: Theory, Practice, History---And the Future”. In McPherson, Kl, Gibson, B.E., Leplège,, A. (Eds), Rethinking Rehabilitation:  Theory and Practice. Boca Raton, FL: CRC Press.

Mental Health Commission of Canada. (2012). Changing directions, changing lives: The mental health strategy for Canada. Calgary, AB: Mental Health Commission of Canada. Retrieved on October 26, 2012 from

Moore, M. E., & Hiday, V. A. (2006). Mental health court outcomes: A comparison of re-arrest and re-arrest severity between mental health court and traditional court participants. Law & Human Behavior, 30 (6), 659–674.

Novella, E.J. (2008). Theoretical accounts on deinstitutionalization and the reform of mental health services: a critical review. Medicine, Healthcare & Philosophy, 11, 303–314.

O’Keefe, K. (2006). The Brooklyn mental health court evaluation: Planning, implementation, courtroom dynamics, and participant outcomes. New York: Center for Court Innovation. Retrieved on November 19, 2011

Office of the Correctional Investigator. (2010a). Under warrant: A review of the implementation of the Correctional Service of Canada’s ‘Mental Health Strategy.’ Ottawa: Government of Canada. Retrieved September 23, 2014,

Office of the Correctional Investigator. (2010b). Annual report of the Correctional Investigator 2009-2010. Ottawa: Government of Canada. Retrieved on November 26, 2014 from

Office of the Correctional Investigator. (2012). Annual report of the Office of the Correctional Investigator, 2011-2012. Ottawa, Government of Canada. Retrieved on November 26, 2014 from

Ogloff, J. R. P. (2002). Identifying and accommodating the needs of mentally ill people in gaols and prisons. Psychiatry, Psychology, and Law, 9, 1–33.

Peterson, J., Skeem, J. L., Hart, E., Vidal, S., & Keith, F. (2010). Comparing the offense patterns of offenders with and without mental disorder: Exploring the criminalization hypothesis. Psychiatric Services, 61, 1217–1222.

Petrila, J. (1993). Paternalism and the unrealized promise of ESSAYS IN THERAPEUTIC JURISPRUDENCE. New York Law School Journal of Human Rights, 10, 877- 905 (reviewing Essays in Therapeutic Jurisprudence (David B. Wexler & Bruce J. Winick eds., 1991, Carolina Press).

Petrila, J. (2004). Emerging issues in forensic mental health. Pyschiatric Quarterly, 75, 3-19.

Petrila, J.P., & Redlich, A.D. (2008). Mental illness and the courts: Some reflections on judges as innovators. Court Review, 43, 164–173.

Pratt, C., Koerner, J., Alexander, M. J., Yanos, P. T., & Kopelovich, S. L. (2013). Predictors of criminal justice outcomes among mental health courts participants: The role of perceived coercion and subjective mental health recovery. International Journal of Forensic Mental Health, 12, 116–125.

Ramon, S., Shera, W., Healy, B., Lachman, M., & Renouf, N. (2009). The rediscovered concept of recovery in mental illness. International Journal of Mental Health, 38 (2), 106–126.

Raynor, P., & Robinson, G. (2005). Rehabilitation, Crime and Justice. Basingstoke: Palgrave Macmillan.

Redlich, A. D. (2007). Diversion programs. In B. Cutler (Ed.), Encyclopedia of Psychology and Law. Thousand Oaks, CA: Sage Press.

Redlich, A. D., Hoover, S., Summers, A., & Steadman, H. J. (2010). Enrollment in mental health courts: Voluntariness, knowingness, and adjudicative competence. Law & Human Behavior, 34 (2), 91–104.

Richardson, E., & McSherry, B. (2010). Diversion down under—Programs for offenders with mental illnesses in Australia.  International Journal of Law and Psychiatry, 33 (4), 249–257.

Roderick, D., & Krumholz, S. T., (2006) Much ado about nothing? A critical examination of therapeutic jurisprudence. Trends and Issues in Scientific Evidence, 1, 201–223.

Ryan, S., Brown, C. K., & Watanabe-Galloway, S. (2010). Toward successful post-booking diversion: What are the next steps? Psychiatric Services, 61 (5), 469–477.

Schneider, R. D. (2010). Mental health courts and diversion programs: A global survey. International Journal of Law and Psychiatry, 33 (4), 201–206.

Schneider, R. D., Bloom, H., & Heerema, M. (2007).  Mental health courts: Decriminalizing the mentally ill. Toronto: Irwin Law.

Schneider, R. D., Crocker, A. G., & Leclair, M. C. (2016). Mental health courts and diversion programs. In J. A. Chandler & C. M. Flood (Eds.) Law and Mind: Mental Health Law and Policy in Canada (pp. 303-323). Toronto: LexisNexis Canada.

Seltzer, T. (2005). Mental health courts: A misguided attempt to address the criminal justice system’s unfair treatment of people with mental illnesses. Psychology, Public Policy, and Law, 11 (4), 570–586.

Senate of Canada Standing Committee on Social Affairs, Science and Technology. (2006). Out of the shadows at last: Transforming mental health, mental illness and addiction services in Canada. Ottawa: Government of Canada. Retrieved on November 19, 2011 from

Siegert, R. J., McPherson, K. M., & Dean, S. G. (2005). Theory development and a science of rehabilitation. Disability and Rehabilitation, 27 (4), 1493–1501.

Silverstein, S. M, & Bellack, A. S. (2008) A scientific agenda for the concept of recovery as it applies to schizophrenia. Clinical Psychology Review, 28 (7), 1108–1124.

Slade, M. (2009). Personal recovery and mental Illness. A guide for mental health professionals. Cambridge: Cambridge University Press.

Slade, M., Adams, N., & O’Hagan, M. (2012). Recovery: Past progress and future challenges. International Review of Psychiatry, 24 (1), 1–4.

Steadman, H. J., Osher, F.C., Robbins, P.C., Case, B., & Samuels, S. (2009). Prevalence of serious mental illness among jail inmates. Psychiatric Services, 60 (6), 761–765.

Steadman, H. J., Redlich, A., Callahan, L., Robbins, P. C., & Vesselinov, R. (2011). Effect of mental health courts on arrests and jail days: A multisite study. Archives of General Psychiatry, 68 (2), 167–172.

Tate, D.G. (2006). The state of rehabilitation research: Art or science? Archives of Physical Medicine and Rehabilitation, 87 (2), 160–166.

Teplin, L., (1984).  Criminalizing mental disorder: The comparative arrest rate of the mentally ill.  American Psychologist, 39, 794–803.

Vaddadi, K. (2010). Rehabilitation psychiatry: Moving forward. International Review of Psychiatry, 22(2), 95-98.

Wade, D. (2016). Rehabilitation – a new approach. Part four: a new paradigm, and its implications. Clinical Rehabilitation, 30(2), 109-118.

Wade, D. (2016). Rehabilitation – a new approach. Part three: the implications of the theories. Clinical Rehabilitation, 30(1), 3-10.

Wade, D. T., & de Jong, B. A. (2000). Recent advances in rehabilitation. BMJ, 320,1385-1388.

Ward, T., & Maruna, S. (2007). Rehabilitation. Abingdon, UK: Taylor & Francis.

Wexler, D. B. (1992). Justice, mental health, and therapeutic jurisprudence. Cleveland State Law Review, 40, 517–526.

Wexler, D. B. (2008). Two decades of therapeutic jurisprudence. Touro Law Review, 24 (1), 17–29.

Wexler, D. B., & Winick, B. J. (1996). Law in a therapeutic key: Developments in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.

Wexler, D.B. & Winick, B.J. (1991). Therapeutic jurisprudence as a new approach to mental health law policy analysis and research, University of Miami Law Review, 45 (5), 979- 1004.

Winick, B. J. (2003). Therapeutic jurisprudence and problem solving courts. Fordham Urban Law Journal, 30 (3), 1055–1103.

Winick, B.J. (2013). Problem solving courts: Therapeutic jurisprudence in practice. In R. L. Wiener & E. M. Brank (eds.), Problem solving courts: Social science and legal perspectives (pp. 211–236). New York: Springer.

Winick B. J., & Wexler, D. B., eds. (2003). Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham: Carolina Academic Press.

Winick, B.J., Wiener, R., Castro, A., Emmert, A., & Georges, L.S. (2010). Dealing with mentally ill domestic violence perpetrators: A therapeutic jurisprudence judicial model. International Journal of Law and Psychiatry, 33, 428–439.

Wolff, N., & Pogorzelski, W. (2005). Measuring the effectiveness of mental health courts: Challenges and recommendations. Psychology, Public Policy, and Law, 11 (4), 539–569.

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