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

In the United States, involuntary hospitalization of the mentally ill through the civil commitment process results in a curtailment of the fundamental liberty interest of freedom from external restraint; part of the constitutional guarantee. Apart from the loss of freedom through physical confinement, the labeling that inevitably accompanies commitment can give rise to significant social stigma and restricted life chances. In the last 50 years, the power of doctors to commit on a best interests basis has been replaced by a legal process in which the grounds for involuntary hospitalization have been restricted and the rights of patients prioritized. The problems inherent to both models have led to the development of therapeutic jurisprudence in which the therapeutic possibilities of law and the legal process are studied with the aim of optimizing the therapeutic outcomes of commitment. Any model of involuntary hospitalization necessarily gives rise to basic philosophical and political questions about the nature of individual liberty, freedom, and the relationship between the individual and the state. As historically contingent concepts, what meaning can be attached to them and the goal of striving for a better balance in the context of the mentally ill between freedom and coercion?