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Freiberg, A --- "Psychiatry, psychology and non-adversarial justice" [2010] UMonashLRS 1

Last Updated: 6 May 2011

AUSTRALIAN AND NEW ZEALAND ASSOCIATION OF PSYCHIATRY, PSYCHOLOGY AND LAW


RG MYERS MEMORIAL LECTURE

25 OCTOBER 2010


PSYCHIATRY, PSYCHOLOGY AND NON-ADVERSARIAL JUSTICE: FROM INTEGRATION TO TRANSFORMATION


ARIE FREIBERG*

INTRODUCTION

It is now thirty-two years since ANZAPPL, the Australian and New Zealand Association of Psychiatry, Psychology and Law commenced its extensive program of conferences, workshops and lectures, twenty years since the first RG Myers Memorial Lecture was presented in Melbourne and sixteen years since the first issue of the Journal Psychiatry, Psychology and Law was published.

Bob Myers was a psychiatrist with a commitment to improving dialogue amongst professions. He was a co-founder of ANZAPPL amongst whose aims are the promotion of ‘cooperation and communication among the disciplines of psychiatry, psychology and law, as well as the encouragement of research and lively interchange among such disciplines’.[1] Its constitution commits it to exploring the relationships between psychiatry, psychology and law[2], to co-operation and communication, to the promotion of research and the provision of more and better public and professional opinion about forensic psychiatry, psychology and law.

Apparently, Bob Myers was not a shy or retiring person and indeed he delivered the first of the eponymous lectures in 1990. He was followed by many distinguished speakers many of whom I have had the privilege of knowing personally including Professors Paul Mullen, Jim Ogloff, Ian Freckelton, Terry Carney and the late Bruce Winick as well as Justices Marcia Neave and Michael Kirby, to name but a few. It is a privilege to continue in the tradition that they have established.

This lecture focuses upon that aspect of Bob Myers’ vision that was concerned with the relationship between disciplines and professions. It is primarily about the nature of inter-disciplinary studies and the contribution that they have made to the development of law and legal practice. It discusses transitions from innovation to institutionalization in organizational structures[3] and how individual disciplines can merge or coalesce to form new fields of learning. It will discuss, in particular, two of the new perspectives that have emerged from interdisciplinary studies, one of which is therapeutic jurisprudence the other being non-adversarial justice.

INTERDISCIPLINARITY

There are no accepted definitions of the terms ‘inter-disciplinary’, ‘multi-disciplinary’, ‘cross-disciplinary’ or ‘trans-disciplinary’ nor are there any clear distinctions between them. All imply some level of synthesis between bodies of knowledge.[4] A discipline can be regarded as a distinct body of knowledge or a branch of learning.[5] It is, of course, more than that: it is about discourses, institutions, cultural practices and shared experiences[6] or what Haas has called ‘epistemic communities’.[7] Disciplines, and disciplinary boundaries, have much to commend them. They bring order to knowledge and an array of scientific or other research methods to produce or validate information. Where that body of knowledge, and the people associated with it, have been ‘professionalized’[8] a ‘discipline’ can bring a set of ethical standards, values and controls over those unqualified to practise in those designated domains of knowledge or practice. On the other hand, intellectual disciplinary boundaries may also be claustrophobic,[9] solipsistic and conducive to stagnation, complacency and even hubris. Professionalisation can lead to restrictive trade practices and the distortion of markets in services to the detriment of consumers.

The concept of ‘interdisciplinarity’ first emerged in the 1920s to describe the method of academic inquiry that relates to two or more branches of learning.[10] Interdisciplinarity can also be the basis of creativity, the process that Arthur Koestler described as the ‘bisociation’ that occurs when two or more apparently incompatible frames of thought are brought together by an ingenious mind.[11] Creativity, according to Koestler, is not the creation of something from nothing, but the recombination of existing components or ideas. Creativity requires multiple influences, disparities, divergent schemas and an openness of mind that allows connections to be made between different ideas, worldviews or, in the present case, disciplines. Balkin has characterized the inter-disciplinary enterprise as ‘quasi-Darwinian’: as the ‘inter-breeding’ of disciplines that can lead to stronger, more vibrant and healthy life forms or intellectual forms which can flourish much better than those that become too insular.[12] But interdisciplinarity can also be threatening to existing regimes of knowledge and therefore power because it challenges existing structures, boundaries and practices of the fields into which it trespasses.[13]

Psychiatry, psychology and law

The relationship between psychiatry, psychology and law is relatively new, at least in relation to the history of law. Law is one of the most ancient and honourable of disciplines dating back to the Middle Ages. Psychology can be dated back to the ancient Greeks, but its modern scientific form is perhaps a nineteenth century phenomenon. Psychiatry is only just over a century old. It was one the disciplines that was involved in what Galanter and Edwards identified as the emergence of the ‘law ands’ in the 1960s: law and society, law and psychology, law and economics, law and feminism, law and literature, law and critical legal studies.[14] These perspectives were partly the product of the 1960s anti-establishment social movements but stood in the older tradition of the American Realist movement of the 1930s that adopted a more scientific approach to the law, looking beyond what was written in the statutes, the judgments and the texts to how the law operated in practice. The Realists were ‘consequentialists’ rather than formalists in that they were interested in the effects of law on the community rather than just its internal structure, logic and meaning.[15] They were empiricists rather than philosophers or jurists and they were more interested in the policy outcomes of their research than in providing arid and sterile critiques of doctrine.

One of the first interdisciplinary ‘and’ reviews was the highly influential Law and Society Review first published in 1966. It was not until the 1970s that the behavioural sciences found their critical outlets, at least in the form of journals. The International Journal of Law and Psychiatry was first published 33 years ago in 1977 as was Law and Human Behavior, Behavioral Sciences and the Law is 28 years old (1982), the Journal of Law and Medicine is 17 years old, Psychiatry, Psychology and Law is 16 years old (1994) and Psychology, Public Policy and Law is 15 years old (1995).

The first issue of the Australian Psychiatry, Psychology and Law, published in 1994, was devoted to the topic of forensic issues in substance abuse. The articles published in that first volume dealt with such matters as sentencing drug and alcohol offenders, methadone maintenance and treatment, mental disorder, intellectual disability and the law, child witnesses and sexual abuse and are as relevant today as they were then.

In subsequent volumes, the journal has published many articles with a policy focus in relation to mental health laws. In his 2008 survey of the journal the editor, Professor Ian Freckelton SC, identified an extensive range of topics that had been covered including psychiatric and psychological practice in the correctional system, administrative law, criminal law, personal injury law and even commercial law. It has covered syndromes, cults, profiling, child abuse, involuntary detention of people with psychiatric illnesses, sex offender monitoring and risk prediction instruments. Articles have been contributed by criminologists, sociologists, historians, librarians, anthropologists, forensic nurses and, needless to say, psychiatrists, psychologists and lawyers. In recent years, the journal has published articles that provide ‘new perspectives on psychiatry, psychology and law, such as those generated by positive psychology and therapeutic jurisprudence...’[16]

The establishment and further development of the highly productive collaboration between the PP&L disciplines has produced significant advances in knowledge and practice in each of them far beyond that produced in the decades before the development of interdisciplinarity. This is evidenced not only in the type, quantity and originality of the research produced, the fruitful dialogue that takes place at professional conferences and colloquia and in the new subjects, courses and degrees that have been developed as a consequence of these disciplinary partnerships or associations.

However, it is my contention that interdisciplinarity alone, with all its creative potential, may be insufficient to produce or catalyse broad institutional change. Interdisciplinarity is a necessary, but not a sufficient condition for major change. I suggest that what is needed in addition is either a coherent intellectual framework or theory or meta-narrative that will fundamentally change the way that the justice system is perceived and operates.

My proposition is that the development of therapeutic jurisprudence since the late 1980s and non-adversarial justice over the last decade, have the potential to transform the justice system in ways that the traditional alliance of PP&L have not. My thesis is that whereas psychiatry, psychology and law tended to focus on bringing the perspectives of different disciplines to bear on a problem such as the treatment of offenders, therapeutic jurisprudence and non-adversarial justice have, and can lead to, institutional transformation: not just making the courts work better but changing the justice system itself. I will suggest that there is a difference between the critical and informative functions of interdisciplinarity, by which each discipline remains separate, but relates to the others, and the transformative function that sees a new discipline emerge, new institutional forms or processes created and possibly new integrative theories articulated that provide solid foundations for their development and evaluation.

The analogies I have in mind here are the development of the individual disciplines of criminology and regulation from their constituent disciplines. Criminology emerged from its disparate sources of law, sociology, psychology, psychiatry, philosophy, economics, history and others. Though theories of and research into crime long pre-dated the nineteenth century, it was only in 1885 that the word ‘criminology’ was coined in 1885 by Raffaele Garafolo in his book of that name.

The discipline of regulation has emerged over the past two decades from the separate disciplines of economics, law, politics, philosophy, criminology, sociology, history and anthropology.[17] In this field as well, the literature is growing rapidly and journals are emerging that recognize regulation as a separate and independent area of study: the journal Regulation and Governance was established as recently as 2006. Courses of study have been developed that examine regulation as a discipline in its own right, though neither it nor criminology is recognized as a ‘profession’. However, recognition as a profession and recognition as a discipline are distinct issues.

THERAPEUTIC JURISPRUDENCE AND PP&L

The nature and history of therapeutic jurisprudence has been well-rehearsed.[18] It is an approach to the study of law as a therapeutic agent, focusing upon the impact of the law on the emotional life and psychological well-being of not only offenders, but of all of the participants in a justice system: judicial officers, victims, offenders, plaintiffs, defendants and others. As was the Realist movement before it, it is consequentialist: law is not merely about doctrine and theory but is to be regarded as a social force that produces behaviours, some therapeutic, some anti-therapeutic. Though it grew from studies in mental health law, for example in relation to civil and criminal commitment of mentally disordered persons, the insanity defence, fitness to stand trial and the like, it developed from looking at the relationship between law and therapy to regarding law as therapy and therapy through law.[19] It expanded from those areas of law to encompass all areas of law including criminal law, juvenile justice, family law, torts law, compensation, child protection, appellate practice and others.

In the early days of therapeutic jurisprudence it was said by many judicial officers that they had been practising therapeutic jurisprudence for years, so what was the big deal? In the same vein, many English literature students discover that they have been speaking prose all their life. But that does not make them an author or an English literature scholar. A pragmatic incremental approach to practice:

... is of limited use if it cannot provide the basis for further development. What distinguishes the abstract theoretical approach from pragmatic incrementalism is that only the former can provide the framework for the study of the relevant phenomena and act as a guide or blueprint for the future.[20]

As McGuire has observed, research from the social sciences provides an

... evidence-base that, conveyed through the theoretical framework of therapeutic jurisprudence, may have a gradually increasing influence on legal procedures, roles, and rules with particular reference to criminal justice. Studies are beginning to appear in which hypotheses generated from the convergence of these fields are being tested in court settings.[21]

Therapeutic jurisprudence has pursued four main areas of inquiry: (1) the role of the law in producing psychological dysfunction; (2) therapeutic aspects of legal rules; (3) therapeutic aspects of legal procedures, and (4) therapeutic aspects of judicial and legal roles.[22] As Wexler himself has wryly observed, ‘therapeutic jurisprudence started as a new twist on mental health law and has now become a mental health twist on law in general, and in virtually all legal areas’.[23]

Winick suggested that therapeutic jurisprudence was not a just a general inter-disciplinary approach: it was focused on a narrow set of consequences: how law affected the mental and physical health of people affected by it.[24] And it was not purely scientific and neutral about the effects of law: it was normative in the sense that other things being equal, positive therapeutic effects were to be preferred.[25]

Therapeutic jurisprudence is intensely inter-disciplinary: it draws on the behavioural sciences such as cognitive psychology, psychiatry, clinical behavioural sciences, criminology, social work, nursing, neuropsychiatry and psychotherapy and has done so from its earliest days,[26] albeit that its founders are primarily lawyers. The late Bruce Winick made this point relatively early in the development of the movement:

To understand how law functions, we must understand political science, economics, anthropology, sociology and psychology, and we must examine law with the tools of these disciplines. Modern approaches to law have been interdisciplinary and empirical in character. We have seen the rise of law and economics, law and society, law and psychology, and social science in law. With these varying interdisciplinary approaches we look beyond the façade of law to penetrate its inner workings. [27]

Therapeutic jurisprudence has been profoundly influential in theory and practice, possibly more than the PP and L movement. If I am correct in this perception, why has this been so given that the PP&L movement has been pivotal in producing a vast body of empirical research and instrumental in promoting evidence-based practice. It has enhanced the perspectives of all of the professions that it embraces and, in effect, provided the foundations for therapeutic jurisprudence. On the other hand, some of its research and assistance to the courts has been impractical and possibly unhelpful.[28]

Wexler has suggested that therapeutic jurisprudence has had a greater effect than PP&L because it was more precisely focused and grounded in the rules and procedures of law, and the roles played within it, than the more generalized and less focused approach of PP&L.[29] Because it developed a distinct conceptual framework, including the idea of psycho-legal softspots, it provided researchers with a clearer agenda for theorizing and more and better defined avenues for practical experimentation.[30] Unlike PP&L, therapeutic jurisprudence was an approach that could readily be applied by judges, magistrates and lawyers. It had practical relevance to the work they did and its principles resonated with the day-to day issues and problems that presented in courts and practice. It suggested techniques to be applied directed at their resolution and was also is flexible enough to allow for its development by practitioners themselves. Thus the judiciary and legal profession could contribute not only to its practical development but also feed into its theoretical development. It was thus a more heuristic approach than the traditional ‘law and’ methodology.[31] The inter-disciplinary approach was creative and heuristic in the Koestlerian sense because, ‘by bringing under one conceptual umbrella many legal areas that previously had not been thought to be related ... it generate[s] questions that otherwise might well go unasked’.[32] The number and kinds of questions that have been asked through a therapeutic jurisprudence lens can be seen at web sites of the Australian therapeutic jurisprudence clearinghouse[33] and the International Network on Therapeutic Jurisprudence that now contains over 1,600 items.[34]

It was the marriage of the pragmatic drug court movement and many of the broad tenets therapeutic jurisprudence theory in the late 1990s that transformed the former from a few local experiments in the United States to an international justice phenomenon. This conjunction transformed court practices not only in relation to drug courts but to all of the other problem-oriented courts such as mental health courts, family violence courts, alcohol courts, indigenous courts and others that it spawned.[35] It also generated new theories about the nature of justice itself.

MENTAL HEALTH JURISDICTIONS

It may be instructive to look at the concept and role of a ‘mental health court’ as a prism through which to see the difference between a PP&L and a therapeutic jurisprudence/non-adversarial justice approach to the intersection between mental health and the law. There are broadly two different models of mental health courts operating in Australia: the specialist court that operates in Queensland and the mental health courts that operate in South Australia, Tasmania and Victoria utilizing a problem-solving court approach.

The Mental Health Court of Queensland, which functions at the Supreme Court level,[36] has been established to determine issues of fitness and/or criminal responsibility of mentally disordered offenders who have been charged with offences. The Mental Health Court, which replaced the former Mental Health Tribunal in 2000, uses an inquisitorial model and is comprised of a senior judicial officer who is assisted by two psychiatrists.[37] The Court also has appellate jurisdiction from the Mental Health Review Tribunal.[38] It can decide matters relating to a person’s mental condition and can investigate the detention of patients in authorized mental health services.[39] The functions of the psychiatrists are generally to assist the court by advising it in relation to clinical evidence and issues.[40] It is a quintessentially ‘Law and’ approach. Section 389 of the Mental Health Act 1989 (Qld) reinforces the limited role assigned to psychiatrists by expressly stating that their ‘functions are limited to matters within the psychiatrist’s professional expertise’.

Mental health review tribunals, from which the Queensland Mental Health Court emerged, have their roots in the rights based reforms to mental health laws in the 1980s and were more concerned with legal and human rights than on the processes themselves.[41] Reflecting on the changes in the operation of such bodies, Weller notes that they were founded on a multi-disciplinary model, a combination of individual disciplines rather than a fusion of them.

The ‘Law &’ approach in the courts has traditionally been to provide expert evidence regarding competence to stand trial, diminished responsibility, insanity or to treatment options. And whereas both a rights-based and a non-adversarial justice approach promote the values of autonomy and self-determination, a therapeutic jurisprudence approach places equal emphasis on the active participation of the person and the process and on the need for the process not to do more harm.

In contrast to these tribunals, a different type of mental health courts, based on the problem-solving court model, has evolved over the past two decades.[42] These mental health courts generally operate at the summary court level and primarily deal with low-level offending. The aim of such courts is to divert offenders into treatment prior to conviction. A mental health court has been defined as:[43]

[A] specialized court docket for certain defendants with mental illnesses that substitutes a problem-solving model for traditional criminal court processing. Participants are identified through mental health screening and assessments and voluntarily participate in a judicially supervised treatment plan developed jointly by a team of court staff and mental health professionals. Incentives reward adherence to the treatment plan or other court conditions, nonadherence may be sanctioned, and success or graduation is defined according to predetermined criteria.

As King et al state:

The distinctive feature of these courts is that they attempt to intervene early in the process. The courts have developed multi-disciplinary teams that provide for intensive treatment and supervision under the control of the judge to whom the teams are accountable...

Mental health courts function as problem-oriented courts in that they attempt to remedy some of the failures of existing community and social services to deal with difficult populations by providing them with access to treatment and other services in a co-ordinated and disciplined fashion. The courtroom process itself is informal and adopts a therapeutic approach to the defendant. Its personnel are specialised and remain with that jurisdiction for long periods.[44]

What is evident here is that the problem-solving/therapeutic jurisprudence/non-adversarial justice approach has transformed the process so that the sum of the marriage between the various disciplines is greater than its parts. The approach is not just about dealing with an offender through multiple disciplines, but re-conceptualising the problem itself as one that concerns not just the offender, but the system within which that person lives and operates.

NON-ADVERSARIAL JUSTICE: INCLUDING AND BEYOND THERAPEUTIC JURISPRUDENCE AND PP&L

In May 2010 the Faculty of Law at Monash University and the Australasian Institute of Judicial Administration held a conference entitled Non-adversarial Justice: Implications for the Legal System and Society in Melbourne. It attracted over 80 papers and 330 delegates, representing nearly 140 organisations from 20 jurisdictions around the world.

What was remarkable about the conference was that it was on a theme whose formal title has yet to be agreed but whose constituents, or vectors as they have been called, are better known: appropriate or alternative dispute resolution (including mediation, negotiation, conciliation and arbitration), restorative justice, participatory justice, therapeutic jurisprudence, preventive law, comprehensive law, creative problem-solving, diversion, holistic law and others.[45]

Briefly described, non-adversarial justice is an approach to justice, both civil and criminal, that focuses on non-court dispute resolution, including the role of tribunals and public and private ombudsmen. It also includes processes used by courts that may not involve judicial determination, or court processes that involve judicial officers both pre- and post-determination of guilt or sentence in exercising more control over process. Its basic premises are prevention rather than post-conflict solutions, co-operation rather than conflict and problem-solving rather than dispute resolution.[46]

It is a broad inter-disciplinary approach that has in common with the vectors described above a desire to broaden the scope of the study of law by focusing differing conceptual lenses upon the nature and operation of legal rules, legal procedures, legal roles and legal education. These rules may be criminal, civil, or administrative, adversarial and inquisitorial.

Each of the fields of inquiry, or vectors, is extensive and has a rich literature that touches, on and intersects with, PP&L. In our book on Non-adversarial Justice,[47] Michael King, Becky Batagol, Ross Hyams and I attempted to identify some of the elements of a non-adversarial justice system:[48]

None of the therapeutic jurisprudence, comprehensive law or the non-adversarial justice approaches to the law, the courts and legal practice can yet claim to have developed a coherent and embracive theory of what is law and what is an ‘alternative’ to law or of how the various ‘vectors’ relate to each other and to the law.[50] Nor have they identified or articulated a ‘foundational philosophy’ to underpin them.[51] As theories of law justice, they are still in their very early stages of development. Yet even in these inchoate states, these approaches have, in many ways, changed the way that the justice system has operated. In an article published in 2008, the founder of the comprehensive law movement, Professor Susan Daicoff queried whether therapeutic jurisprudence and the other vectors of the comprehensive law movement should be

integrated into the legal profession generally or whether they should remain separate and distinct approaches to law, lawyering and adjudication? In other words, should all lawyers and judges learn to practice therapeutic jurisprudence, and apply it in appropriate cases, or should it be a separate and distinct discipline, practices by only specially-trained individuals in the legal profession?[52]

In the following discussion I will argue that, for Victoria at least, these questions have been answered in favour of the integrative approach.

NON-ADVERSARIAL JUSTICE: TRANSFORMING THE JUSTICE SYSTEM

It would be an almost impossible task, and certainly one beyond the scope of this exercise to identify all of the intersections between non-adversarial justice and the behavioural sciences. However, papers delivered at the recent conference reveal the difference between the PP&L agenda and the non-adversarial justice agenda.

The non-adversarial justice conference explored not only the broad contours of therapeutic jurisprudence, restorative justice, appropriate dispute resolution and non-adversarial justice but their relationships with the courts, especially problem-oriented courts, indigenous courts and mental health courts. Topics covered also included preventive and holistic approaches to law; court processes in relation to sexual assault; child witnesses; interagency partnerships; court and community partnerships; judicial and legal professional roles, skills and training; legal education; compensation; emotions; apology; victims; court management and notions of truth and reconciliation.[53] The agenda is a broad one and yet to cohere but I would like to examine in some more detail a few of the themes that reveal the transformative nature of this different approach.

In her important paper at the conference, Charlotte Stockwell, the Chief Executive Officer of the Victorian Magistrates’ Court argued that it was insufficient to change individual court practices without changing court management practices, institutional arrangements and legal and other professional cultures.[54] She observed that the justice system now had broader aims, not just to resolve disputes, but to encourage social inclusion and reduce offending and to increase equity of access to justice across the state. She noted that therapeutic jurisprudence principles were now informing the reform of court services with a view to increasing the amount of multi-disciplinary case management and collaboration.

Before describing the Victorian government’s vision for the future, it might be worth briefly recalling the extensive and rapid changes that have occurred over the past decade in this jurisdiction alone. In November 1998 the CREDIT (Court Referral and Evaluation for Drug Intervention and Treatment) began in the Magistrates’ Court). In 2002 the first problem-oriented court, the drug court, was established in Dandenong.[55] Later that year the first Koori court was established in Shepparton.[56]

In 2004, the Attorney-General of Victoria, Rob Hulls, published a “Justice Statement” that committed to working with the Magistrates’ Court in developing a policy framework for expanding problem-solving courts.[57] In 2005 the Department of Justice created a Courts and Programs Development Unit to drive innovation in the courts, including problem-oriented courts and court support units, as well as to provide research and evaluation support to the courts portfolio in the Department of Justice. The 2004 Justice Statement declared that Victoria would:[58]

The Justice Statement articulated a number of principles that should guide the development of the framework, including:

In June 2005 the Family Violence Division of the Magistrates’ Court was established at Ballarat and Heidelberg.[59] In 2006 Court Integrated Services Program (CISP)[60] was established to assist in ensuring that accused persons receive support and services to promote a safer community. In 2006 the legislation for a Neighbourhood Justice Centre was passed[61] and it commenced operation in February 2007.

In 2008, building on the previous framework, the Attorney-General issued a second Justice Statement[62] that contained a number of non-adversarial initiatives including adopting a problem-oriented approach that recognises the links between crime, social disadvantage and poverty. The Justice Statement proposed to expand the various programs and courts, often established on a pilot basis, into a more integrated approach.[63] This would be done by stronger central coordination of services, by the more efficient pooling of information and resources, by developing specialist staff, by managing offenders in a more holistic manner, and by ensuring consistent treatment approaches.[64] Crucially, the Justice Statement promotes the view that problem-solving approaches should be integrated in the mainstream Magistrates’ Court system, so that they are not regarded as either marginal or temporary.

The Next Generation Court project, which was established in 2009 continues the momentum and is looking to enhance or create court processes that aim to address the underlying causes of offending and victimization using problem-oriented approaches through collaborative court support programs for example through:[65]

Stockwell describes the next generation court as one that:

The latest addition to the specialist lists in Victoria is the mental health court, the Assessment and Referral Court (‘ARC’) list established in 2010. That court is described by the Magistrates’ Court as a specialist court list developed by the Department of Justice and the Magistrates’ Court of Victoria to meet the needs of accused persons who have a mental illness and/or a cognitive impairment. The ARC list is located at Melbourne Magistrates’ Court and works collaboratively with CISP, which provides case management to participants. Case management may include psychological assessment, referral to welfare, health, mental health, disability, and/or housing services and/or drug and alcohol treatment.[67]

Lest it be thought that these changes have been confined to summary offences, they have also been evident in the Family Court through the Less Adversarial Trial legislation introduced in 2004 that involves active judicial management of court processes, evidence and findings, primacy afforded to the needs and interests of the child, increasing use of primary dispute resolution that involves mediation, conciliation and arbitration and family group conferences that attempt to resolve problems between the parties.[68]

CHANGING PHILOSOPHIES

The transformation is not only practical, but it is now recognized as an underpinning philosophy that informs the way that some courts and the justice system operate. For example, the legislation setting up the Neighbourhood Justice Centre states specifically that in assigning a magistrate to the Neighbourhood Justice Division, the Chief Magistrate must ‘have regard to the magistrate’s knowledge of, or experience in the application of, the principles of therapeutic jurisprudence and restorative justice’.[69] The recently advertised position description for the Chief Magistrate of the Northern Territory stated that beyond the minimum requirements for such a position, such as legal experience etc,

Applicants must have an understanding of the principles of restorative justice and therapeutic jurisprudence, and an aptitude for the application of those principles.[70]

The most recent review by the Victorian Law Reform Commission of the child protection system required the Commission to have regard to, inter alia, ‘the themes and principles of the Attorney-General’s Justice Statement (2004) and Justice Statement 2 (2008), particularly the focus on Appropriate Dispute Resolution and measures to reduce the adversarial nature of the justice system’.[71] The non-adversarial justice approach has changed not just the possible answers but the way that we frame the problems themselves.

JUDICIAL EDUCATION AND INFORMATION

Underpinning these philosophical, practical and cultural changes are also changes to judicial education and the information that is provided to judicial officers (and others) with regard to the meaning of therapeutic jurisprudence and the evidence base for their court practices. The Australasian Institute of Judicial Administration has developed a comprehensive and well-used clearing house on therapeutic jurisprudence[72] and my erstwhile colleague, prolific author and now a magistrate in Kununurra in Western Australia, Dr Michael King, has authored, or been involved in, two important bench books[73]: Solution-focused Judges’ Bench Book[74] and the Bench Book for Children Giving Evidence in Australian Courts.[75] The former is an extensive (253 page) guide for judges which covers such topics as problem solving court, substance abuse, mental health, family violence, judicial communication skills, judicial listening skills and processes and strategies for achieving behavioural change. In relation to the use of behavioural science research, King writes:[76]

This bench book often cites psychological research or observations made by theorists from the behavioural sciences. The object is not to turn judicial officers into counsellors or psychologists. Rather, the citation of such literature is done on the basis that areas of interest to judging in a therapeutic or solution-focused manner – such as communication, motivation and behavioural change – are shared by psychology and other behavioural sciences. Other areas of human life also have this interest – such as leadership, business, community service organisations and coaching. Indeed, the judicial role in a problem-solving court program has been seen to be very similar to that of a coach.

Research and practices in the behavioural sciences and in other areas where behavioural science findings are applied may assist judicial officers and lawyers in the performance of their work. Indeed, noted humanistic psychologist Carl Rogers observed that what is true in a relationship between therapist and client may also apply in human experience broadly.

The latter bench book is intended to inform judicial officers of developmental factors that affect how children give evidence, how courts should receive such evidence and effect of child abuse on victims, among many other issues.

What is important about this work is the transference of the basic ideas from the behavioural sciences beyond the individual committed judicial officer, beyond the problem-oriented or solution-focused courts, to the operation of the mainstream courts themselves and it is this broad transformational element that I believe is the greatest contribution of non-adversarial justice to changing the justice system and probably why it has been more effective in doing so than that ‘law and...’ paradigm.

Drawing from King’s bench book work and from many of the other therapeutic jurisprudence, restorative justice and other streams of non-adversarial justice literature, here are some of the intrinsic or embedded elements of the new justice. It can seek to:

None of these elements requires a psychiatrist or psychologist to be called as an expert witness or to sit with or on the bench. This knowledge is no longer expert, but mainstream: a normal way of doing business.

CONCLUSION

Innovation springs from many sources: from dissatisfaction with existing practices,[77] from philosophical[78] and technological changes and from the creativity that comes from the juxtaposition or fusing of disparate conceptual systems.

What are the consequences of the ‘beyond the law and’ approach? For the courts it means more than requiring or encouraging judicial officers to be aware of the learnings of the behavioural sciences, or bringing behavioural scientists into the courtroom when the limits of legal knowledge have been reached. Rather it requires them to move beyond ‘the pure intellectual analysis of the law and dispassionate assessment of the facts’[79] to reconfiguring court processes such as

the taking of evidence, problem solving (particularly addressing underlying issues) interpersonal judicial and lawyer skills, motivation and behavioural change....[80]

Even court architecture itself can reflect the new philosophies of non-adversarial justice and therapeutic jurisprudence in the way that courtrooms are configured to promote respect for cultures[81] or better communication between the participants, as occurs in many problem-solving courts. Neighbourhood justice or community courts are not just stand alone court houses but a part of a complex of services including housing, financial advice, counseling and other support services, some of which are available to community members whether or not they are referred to by the court itself.[82]

For law schools preparing legal practitioners, policy-makers and legislators of the future it means crafting curricula that encourage qualification in two or more disciplines (preferably simultaneously in order to encourage diversity of thought, teaching approaches and learning styles), embedding non-adversarialism in both content and the manner of teaching (collaboration, group work, assessment), problem-solving and preventative rather than dispute settlement approaches to conflict, creativity in crafting solutions to problems and a broader range of skills including emotional intelligence, interviewing skills, listening skills and clinical practice.[83]

Wexler has argued that the next challenge of therapeutic jurisprudence is the creation of a new body of ‘practical interdisciplinary scholarship’.[84] We are not yet at the stage when therapeutic jurisprudence and non-adversarial justice are complete theories.[85] Nor should they be accepted uncritically and be immune to empirical testing and critical analysis.[86] However, together they may have assisted in the development of a transformative approach to an understanding of the justice system.

It is too early to determine the outcome of these changes: the process of iterative experimentation is still nascent, but the contours are emerging, at least in Victoria in the next generation of court models. What is needed at the moment is a commitment to the flexibility and creativity that comes from keeping an open mind and a willingness to challenge the traditional and to experiment with the new.

This lecture honours the memory of Bob Myers, a pioneer and iconoclast. In August of this year Professor Bruce Winick, a co-founder of therapeutic jurisprudence with Professor David Wexler died. He was a creative intellectual and a superb and prolific scholar who possessed a warm and generous spirit. He would have been a soul mate of Bob Myers. In 1997 he wrote:

It is the task of scholarship to advance knowledge even if it might challenge deeply held values. If the assumptions on which a society’s values are erroneous in some way that scholarship can demonstrate, then those values are in need of reexamination.... All scholarship must be welcome in the marketplace of ideas, and all of our beliefs must perpetually be tested in the competition of that marketplace. The quest for truth can sometimes make us question basic assumptions. Although it may be uncomfortable and sometimes even painful to do this, we must be brave enough to open our eyes to knowledge and to dare to see the world clearly, as it is, rather than as we might wish it to be.[87]

The emergent power and influence of the new approaches that I have outlined and possibly trans-disciplinary bodies of knowledge requires an open-mindedness in the constituent disciplines and a readiness to accept the possibility that some should not only cohabit, but that they should breed in order to create new, vigorous and challenging intellectual/juridical life forms.[88] I am sure that Bob Myers, for one, would have been delighted by such a prospect.



* Dean, Faculty of Law, Monash University. My thanks to Ian Freckelton, David Wexler, Michael King and Liz Richardson for comments on earlier drafts of this paper.

1 Editorial, (1994) 1 Psychiatry, Psychology and Law 1.

[2] Hereinafter PP&L.

[3] MC Dorf and JA Fagan, ‘Problem-Solving Courts: From Innovation to Institutionalization’ (2003) 40 American Criminal Law Review 1501-1511.

[4] MM Siems, ‘The Taxonomy of Interdisciplinary Legal Research: Finding the Way out of the Desert’ (2009) 7 Journal of Commonwealth Law and Legal Education 5, 6-7.

[5] DW Vick, ‘Interdisciplinarity and the Discipline of Law’ (2004) 31(2) Journal of Law and Society 163, 166.

[6] Vick (note 5)

[7] Haas has described an epistemic community as a ‘network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy relevant knowledge within that domain or issue area. Although an epistemic community may consist of professionals from a variety of disciplines and backgrounds, they have (1) a shared set of normative and principled beliefs, which provide a value-based rationale for the social action of community members; (2) shared causal beliefs, which are derived from their analysis of practices leading or contributing to a central set of problems in their domain and which then serve as the basis for elucidating the multiple linkages between possible policy actions and desired outcomes; (3) shared notions of validity- that is, intersubjective, internally defined criteria for weighing and validating knowledge in the domain of their expertise; and (4) a common policy enterprise-that is, a set of common practices associated with a set of problems to which their professional competence is directed, presumably out of the conviction that human welfare will be enhanced as a consequence’; PM Haas, ‘Epistemic Communities and International Policy Coordination’ (1992) 46(1) International Organization 1, 3.

[8] The Australian Council of Professions defines a profession as ‘a disciplined group of individuals who adhere to high ethical standards and uphold themselves to, and are accepted by, the public as possessing special knowledge and skills in a widely recognised organised body of learning derived from education and training at a high level, and who are prepared to exercise this knowledge and these skills in the interest of others.’ www.accc.gov.au/content/index.phtml/itemId/277772.

[9] Vick (Note 5) 171.

[10] Vick (Note 5) 164.

[11] http://en.wikipedia.org/wiki/The_Act_of_Creation; A Koestler, The Act of Creation (Dell: New York, 1967)

[12] JM Balkin, ‘Interdisciplinarity as Colonization’ (1996) 53 Washington and Lee Law Review 949, 956.

[13] Vick (Note 5) 171.

[14] M Galanter and MA Edwards, ‘Introduction: The Path of the Law ANDS’ (1997) Wisconsin Law Review 375-387.

[15] Galanter and Edwards (Note 14) 377. Consequentialism is not used here in the Benthamite utilitarian sense that the moral worth of an action is determined by its outcome, but to distinguish it from doctrinal formalism.

[16] I Freckelton, ‘Psychiatry, Psychology and Law and ANZAPPL’ (2008) 15(1) Psychiatry, Psychology and Law 1, 6; see, for example, A Birgden, ‘Serious Sex Offenders Monitoring Act 2005 (Vic): A Therapeutic Jurisprudence Analysis’ (2007) 14(1) Psychiatry, Psychology and Law 78-94; B Winick, ‘A Therapeutic Jurisprudence Approach to Dealing with Coercion in the Mental Health System’ (2008) 15(1) Psychiatry, Psychology and Law 25-39; BA Arrigo, ‘The Ethics of Therapeutic Jurisprudence: A Critical and Theoretical Enquiry of Law, Psychology and Crime’ (2004) 11(1) Psychiatry, Psychology and Law 23-43; I Freckelton, ‘Mental Health Review Tribunal Decision-making: A Therapeutic Jurisprudence Lens’ (2003) 10(1) Psychiatry, Psychology and Law 44-62.

[17] See R Baldwin, C Scott and R Hood, A Reader on Regulation (Oxford University Press: Oxford 1998) 35.

  1. [18] D Wexler, ‘The Development of Therapeutic Jurisprudence: From Theory to Practice’ (1999) 68 Revista Juridica University de Puerto Rico 691-705; D Wexler, From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part (Arizona Legal Studies, Discussion paper No.10-12, 2010). For a summary of the critiques of therapeutic jurisprudence and a response to them see I Freckelton, ‘Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence’ (2007-2008) 30 Thomas Jefferson Law Review 575-598. The following summary draws from these publications; see also M King, A Freiberg, B Batagol and R Hyams, Non-adversarial Justice (The Federation Press: Sydney 2009) Chapter 2.

[19] Wexler 1999 (Note 18) 695.

[20] A Freiberg, ‘Therapeutic Jurisprudence in Australia: Paradigm Shift or Pragmatic Incrementalism?’ (2003) 20(2) Law in Context 1, 11.

[21] J McGuire, ‘Maintaining Change: Converging Legal and Psychological Initiatives in a Therapeutic Jurisprudence Framework’ (2003) 4(2) Western Criminology Review 108.

[22] D Wexler, ‘An Introduction to Therapeutic Jurisprudence’ in D Wexler, and BJ Winick, (eds), Essays in Therapeutic Jurisprudence (Carolina Academic Press: Durham 2000) 19; see also King et al, (Note 18) 28-29.

[23] Wexler 2010 (Note18).

[24] B Winick, ‘The Jurisprudence of Therapeutic Jurisprudence’ (1997) 3(1) Psychology, Public Policy, and Law 184-206.

[25] In that respect it was similar to feminist jurisprudence or critical race theory which sought to advance the interests of women or minorities: Winick (Note 26) 188-189.

[26] Winick (Note 24) 187; Wexler (Note 18) 2010: no page; McGuire, J. (Note 21) 118.

[27] Winick (Note 24) 186-187.

[28] See eg Attorney-General for the State of New South Wales v John Fairfax Publications Pty Ltd [1999] NSWSC 318 (expert evidence relating to memory of publications likely to prejudice jurors rejected in favour of ‘practical reality).

[29] Personal communication dated 15 August 2010.

[30] On the process of ‘iterative experimentation’ whereby courts can experiment, review, evaluate and alter their practices see MC Dorf, and CF Sabel, ‘Drug Treatment Courts and Emergent Experimentalist Government’ (2000) 53 Vanderbilt Law Review 831-883.

[31] The word ‘heuristic’ describes systems of learning, discovery or understanding, or ways of solving problems by trial and error or by experimentation. It also describes a process of stimulating interest in order to further discover knowledge or to experiment. Winick and Wexler maintained from the beginning of their work in therapeutic jurisprudence that they were not creating a rigid theoretical framework but a flexible tool to explore the effect of law and legal processes on participants. Further, it was their view that the strong interdisciplinary focus of therapeutic jurisprudence that was most conducive to the generation of research questions and constructive answers, see M McMahon, and D Wexler, ‘Therapeutic Jurisprudence: Developments and Applications in Australia and New Zealand’ (2003) 20(2) Law in Context 1-2.

[32] Winick (Note 24) 189.

[33] www.aija.org.au/research/australasian-therapeutic-jurisprudence-clearinghouse.html. The topic headings include civil and administrative law, corrections, court administration, court diversion programs, death-related issues, family breakdown and child welfare, family violence, indigenous issues, judging, legal and judicial education, legal practice, problem-solving courts and victims.

[34] www.law.arizona.edu/depts/upr-intj/.

[35] See PF Hora, WG Schma and JTA Rosenthal, ‘Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America’ (1999) 74 Notre Dame Law Review 439-537; see also Dorf and Fagan (Note 30) 1502.

[36] See Mental Health Act 2000 (Qld), s 381(1).

[37] Mental Health Act 2000 (Qld), s 381.

[38] The Mental Health Court has similar powers to the former Mental Health Tribunal which also operated with a Supreme Court judge and assisting psychiatrists. The Mental Health Act 2000 (Qld), which established the Mental Health Court, amongst other things clarified the role of assisting psychiatrists to ensure openness and accountability of decision-making.

[39] Mental Health Act 2000 (Qld), s 383.

[40] Mental Health Act 2000 (Qld), s 389.

  1. [41] P Weller, Non-adversarial Justice and Mental Health Review Tribunals: A Reflexive Turn, Unpublished Paper (2010).

[42] Mental health courts or lists operate in South Australia, Victoria, and Tasmania; see generally E Richardson and B McSherry, ‘Diversion Down Under – Programs for Offenders with Mental Illnesses in Australia’ (2010) 33 International Journal of Law and Psychiatry 249-257. They are very diverse in their operation and in their legal foundations. The Victorian mental health court, known as the Assessment and Referral Court List, is discussed below.

[43] Council of State Governments Justice Center (2008) 4.

[44] (Note 18) 145.

[45] (Note 18) 7; S Daicoff, ‘Law as a Healing Profession: The Comprehensive Law Movement’ (2006) 6 Pepperdine Dispute Resolution Journal 1-61.

[46] (Note 18) 5.

[47] (Note 18) Chapter 1.

[48] Since adopting the term ‘non-adversarial justice’ it became apparent that this was too narrow, too focused upon the common law system and perhaps too oppositional a term. I have argued that these approaches are equally relevant to inquisitorial systems: see A Freiberg, ‘Post-Adversarial and Post-Inquisitorial Justice: Transcending Traditional Penological Paradigms’ (2010) 8(2) European Journal of Criminology 1-20; see also Daicoff (Note 45).

[49] See particularly the work of Tyler and colleagues dating back to the early 1990s: T Tyler, Why People Obey the Law (Yale University Press: New Haven CT 1990).

[50] On the relationship between therapeutic jurisprudence and comprehensive law, see S Daicoff, ‘Growing Pains: The Integration vs. Specialization Question for Therapeutic Jurisprudence and Other Comprehensive Law Approaches’ (2007-2008) 30 Thomas Jefferson Law Review 551-574.

[51] Dewhurst has correctly identified these weaknesses and suggested that a comprehensive and internally consistent super-system of norms that can be used to evaluate the adversarial system and the evolving vectors can be developed from an Aristotelian natural law virtue theory. This would assist in providing a definition of justice and law. He proposes that the Comprehensive Law Movement would better be termed the Comprehensive Justice Movement: D Dewhurst, ‘Justice Foundations for the Comprehensive Law Movement’ (2010) International Journal of Law and Psychiatry doi:10.1016/j.ijlp.2010.09.016 (in press).

[52] Daicoff (Note 50) 553.

[53] Some of the papers from that conference will published in a Special Issue of the Monash University Law Review in 2011.

[54] C Stockwell, Managing the Transition from the Adversarial to the Non-Adversarial Court: A Court Administrator’s Perspective, Unpublished Paper 2010.

[55] Magistrates’ Court Act 1989 (Vic), ss 18X to 18XS. The first drug court in Australia was established in New South Wales in 1998 (Drug Court Act 1998 (NSW)) and Youth Drug Court was established in 2000; see S Turner, The New South Wales Youth Drug and Alcohol Court Program: Interagency Partnerships in Action, Unpublished Paper, 2010.

[56] Magistrates’ Court Act 1989 (Vic), ss 4D-G.

[57] Attorney-General, Victoria, Justice Statement (Melbourne: Department of Justice 2004) 61. Some of the material in the following paragraphs is drawn from King et al (Note 18) 20-22.

[58] Attorney General (Note 57) 61.

[59] Magistrates’ Court Act 1989 (Vic), s 4H. The first of such jurisdictions was established in South Australia in 1997, see King et al (Note 18) 154.

[60] The CISP was established in 2006 and operates in three Victorian Magistrates Courts. It provides a multi-disciplinary approach to the assessment and referral to treatment of clients for drug and alcohol treatment, acquired brain injury services, accommodation services, and disability and mental health services for periods of up to four months. It is not linked to a particular court or list. It aims to provide pre-sentence, short-term support for accused people with health and social needs: www.magistratescourt.vic.gov.au/wps/wcm/connect/Magistrates+Court/Home/Court+Support+Services/MAGISTRATES+-+Court+Integrated+Services+Program.

[61] Magistrates’ Court Act 1989 (Vic), s 4M.

[62] Attorney-General, Victoria, Attorney-General’s Justice Statement 2: The Next Chapter (Department of Justice: Melbourne 2008).

[63] Attorney-General, (Note 62) 34.

[64] Attorney-General, (Note 62) 34.

[65] http://165.142.249.4/CA256EBD007FC352/page/New+Initiatives-Next+Generation+Courts?OpenDocument&1=05-New+Initiatives~&2=0-Next+Generation+Courts~&3=~

[66] Stockwell (Note 54) 9.

[67] http://www.magistratescourt.vic.gov.au/wps/wcm/connect/justlib/magtrates+court/home/court+support+services/magistrates+-+assessment+and+referral+court+list

[68] Family Law Act 1975 (Cth) Part VII, Division 12A; King et al (Note 18) 130-131.

[69] Magistrates’ Court Act 1989 (Vic) s 4M(5).

[70] In July 2010, Ms Hilary Hannam was appointed as Chief Magistrate of the Northern Territory. Ms Hannam had been a magistrate in New South Wales for ten years and had presided in the New South Wales Youth Drug and Alcohol Court. In 2002 she was awarded a Churchill Fellowship to undertake research into therapeutic courts and has presented papers on therapeutic jurisprudence and specialist courts.

[71] Victorian Law Reform Commission, Protection Applications in the Children’s Court: Final Report 19 (VLRC, Melbourne: 2010). The Commission was guided by a number of principles including that processes should actively encourage early resolution by agreement whenever appropriate, should actively encourage inter-professional collaboration and that courts should be inquisitorial and problem-oriented decision-makers (p 16).

[72] (Note 33).

[73] A benchbook is a book providing an overview of legal procedure for a judge. These books are used by judges while hearing cases as guides to assist in the disposition of a case: Wikipedia, ttp://en.wikipedia.org/wiki/Benchbook.

[74] http://www.aija.org.au/Solution%20Focused%20BB/SFJ%20BB.pdf

[75] http://www.aija.org.au/Child%20Witness%20Bch%20Bk/Child%20Witness%20BB%202009.pdf

[76] (Note 74) 5.

[77] Dorf and Fagan (Note 3) 1501.

[78] For a description of some the philosophical shifts that have paved the way for the emergence of comprehensive or non-adversarial approaches to law see Daicoff (Note 45) 38ff. These include globalization, post-modernism, post-enlightenment values, neo-realism, neo-humanism and others.

[79] King et al (Note 18) 211.

[80] King et al (Note 18) 213.

[81] See designs of indigenous courts, King et al (Note 18) 217.

[82] King et al (Note 18) 218.

[83] King et al (Note 18) Chapter 16.

[84] Wexler (Note 18) 11.

[85] Therapeutic jurisprudence regards itself as a framework for asking questions rather than a coherent body of knowledge that explains observed phenomena, which can predict future behaviour and which is verifiable; see also the discussion of Dewhurst (Note 51).

[86] See Freckelton’s salutary cautionary article (Note 18). See also Daicoff (Note 50) 571 who suggests that it is vital that these new approaches be evaluated, for example, the efficacy of drug courts, rates of compliance with court orders when procedural justice concepts are used and satisfaction data when comprehensive approaches are utilized.

[87] Winick (Note 24) 198-199 (footnotes omitted).

[88] Vick (Note 5) 173. David Wexler has made the same point in relation to the cross-fertilisation between theory and practice: Wexler (Note18) fn 41. As Ridley colourfully puts it: ‘Trade is to culture as sex is to biology. Exchange makes cultural change collective and cumulative... The rate of cultural and economic progress depends on the rate at which ideas are having sex.’: Matt Ridley, Humans: Why they Triumphed, The Wall Street Journal, May 22, 2010, http://online.wsj.com/article/SB10001424052748703691804575254533386933138.html


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