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Anger and Forgiveness"Are You There Alone?"10 Good Questions about Life and DeathA Casebook of Ethical Challenges in NeuropsychologyA Companion to BioethicsA Companion to BioethicsA Companion to GenethicsA Companion to GenethicsA Companion to Muslim EthicsA Cooperative SpeciesA Critique of the Moral Defense of VegetarianismA Delicate BalanceA Fragile LifeA Life for a LifeA Life-Centered Approach to BioethicsA Matter of SecurityA Mirror Is for ReflectionA Mirror Is for ReflectionA Natural History of Human MoralityA Philosophical DiseaseA Practical Guide to Clinical Ethics ConsultingA Question of TrustA Sentimentalist Theory of the MindA Short Stay in SwitzerlandA Tapestry of ValuesA Very Bad WizardA World Without ValuesAction and ResponsibilityAction Theory, Rationality and CompulsionActs of ConscienceAddiction and ResponsibilityAddiction NeuroethicsAdvance Directives in Mental HealthAfter HarmAftermathAgainst AutonomyAgainst BioethicsAgainst HealthAgainst MarriageAgainst Moral 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IdentitiesDeaf Identities in the MakingDeath Is That Man Taking NamesDebating ProcreationDebating Same-Sex MarriageDecision Making, Personhood and DementiaDecoding the Ethics CodeDefining DifferenceDefining Right and Wrong in Brain ScienceDefining the Beginning and End of LifeDelusions of GenderDementiaDemocracy in What State?Demons of the Modern WorldDescriptions and PrescriptionsDesert and VirtueDesire, Practical Reason, and the GoodDestructive Trends in Mental HealthDeveloping the VirtuesDid My Neurons Make Me Do It?Difference and IdentityDigital HemlockDigital SoulDignityDignityDisability BioethicsDisability, Difference, DiscriminationDiscrimination against the Mentally IllDisordered Personalities and CrimeDisorders of VolitionDisorientation and Moral LifeDivided Minds and Successive SelvesDoes Feminism Discriminate against Men?Does Torture Work?Doing HarmDouble Standards in Medical Research in Developing CountriesDown GirlDrugs and JusticeDworkin and His CriticsDying in the 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ScienceEthics and the A PrioriEthics and the Discovery of the UnconsciousEthics and the Metaphysics of MedicineEthics at the CinemaEthics at the End of LifeEthics Case Book of the American Psychoanalytic AssociationEthics Done RightEthics ExpertiseEthics for EveryoneEthics for PsychologistsEthics for the New MillenniumEthics in CyberspaceEthics in Everyday PlacesEthics in Health CareEthics In Health Services ManagementEthics in Mental Health ResearchEthics in PracticeEthics in PsychiatryEthics in PsychologyEthics in Psychotherapy and CounselingEthics of PsychiatryEthics without OntologyEthics, Culture, and PsychiatryEthics, Sexual Orientation, and Choices about ChildrenEvaluating the Science and Ethics of Research on HumansEvilEvil GenesEvil in Modern ThoughtEvil in Modern ThoughtEvolution, Gender, and RapeEvolutionary Ethics and Contemporary BiologyEvolutionary Psychology and ViolenceEvolved MoralityExperiments in EthicsExploding the Gene MythExploiting ChildhoodFacing Human SufferingFact and ValueFacts and ValuesFaking ItFalse-Memory Creation in Children and AdultsFat ShameFatal FreedomFellow-Feeling and the Moral LifeFeminism and Its DiscontentsFeminist Ethics and Social and Political PhilosophyFeminist TheoryFinal ExamFirst Do No HarmFirst, Do No HarmFlashpointFlesh WoundsForced to CareForgivenessForgivenessForgiveness and LoveForgiveness and ReconciliationForgiveness and RetributionForgiveness is Really StrangeFoucault and the Government of DisabilityFoundational Issues in Human Brain MappingFoundations of Forensic Mental Health AssessmentFree WillFree Will And Moral ResponsibilityFree Will and Reactive AttitudesFree Will, Agency, and Meaning in LifeFree?Freedom and ValueFreedom vs. InterventionFriendshipFrom Darwin to HitlerFrom Disgust to HumanityFrom Enlightenment to ReceptivityFrom Morality to Mental HealthFrom Silence to VoiceFrom Valuing to ValueFrontiers of JusticeGender in the MirrorGenetic PoliticsGenetic ProspectsGenetic ProspectsGenetics of Original SinGenetics of Original SinGenocide's AftermathGetting RealGluttonyGood WorkGoodness & AdviceGreedGroups in ConflictGrowing Up GirlGut FeminismHabilitation, Health, and AgencyHandbook for Health Care Ethics CommitteesHandbook of BioethicsHandbook of Children's RightsHandbook of PsychopathyHappinessHappiness and the Good LifeHappiness Is OverratedHard FeelingsHard LuckHardwired BehaviorHarmful ThoughtsHeal & ForgiveHealing PsychiatryHealth Care Ethics for PsychologistsHeterosyncraciesHistorical and Philosophical Perspectives on Biomedical EthicsHoly WarHookedHookedHow Can I Be Trusted?How Fascism WorksHow Propaganda WorksHow to Do Things with Pornography How to Make Opportunity EqualHow Universities Can Help Create a Wiser WorldHow We HopeHow We Think About DementiaHuman BondingHuman Dignity and Assisted DeathHuman Dignity and Assisted DeathHuman EnhancementHuman GoodnessHuman Identity and BioethicsHuman TrialsHumanism, What's That?Humanitarian ReasonHumanityHumanizing MadnessI am Not Sick I Don't Need Help!I Was WrongIdentifying Hyperactive ChildrenIf That Ever Happens to MeImproving Nature?In Defense of FloggingIn Defense of SinIn Love With LifeIn Our Own ImageIn the FamilyIn the Land of the DeafIn the Name of IdentityIn the Wake of 9/11In Two MindsInclusive EthicsInformed Consent in Medical ResearchInnovation in Medical TechnologyInside Assisted LivingInside EthicsIntelligence, Race, and GeneticsIntensive CareInto the Gray ZoneIs Human Nature Obsolete?Is Long-Term Therapy Unethical?Is There a Duty to Die?Is There an Ethicist in the House?Issues in Philosophical CounselingJudging Children As ChildrenJust a DogJust BabiesJust CareJustice for ChildrenJustice for HedgehogsJustice in RobesJustice, Luck, and KnowledgeJustifiable ConductKant on Moral AutonomyKant's Theory of VirtueKids of CharacterKilling McVeighLack of CharacterLack of CharacterLaw and the BrainLearning About School ViolenceLearning from Baby PLeaving YouLectures on the History of Political 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Brain Made Me Do ItMy Sister's KeeperMy Sister's KeeperMy WayNano-Bio-EthicsNarrative MedicineNarrative ProsthesisNatural Ethical FactsNatural-Born CybogsNaturalized BioethicsNeither Bad nor MadNeoconservatismNeonatal BioethicsNeurobiology and the Development of Human MoralityNeuroethicsNeuroethicsNeuroethicsNew Takes in Film-PhilosophyNew Waves in EthicsNew Waves in MetaethicsNietzsche on Ethics and PoliticsNo Child Left DifferentNo Impact ManNormative EthicsNormativityNothing about us, without us!Oath BetrayedOf War and LawOn ApologyOn Being AuthenticOn EvilOn Human RightsOn The Stigma Of Mental IllnessOn the TakeOn Virtue EthicsOn What MattersOn What We Owe to Each OtherOne ChildOne Nation Under TherapyOne World NowOne World NowOur Bodies, Whose Property?Our Bodies, Whose Property?Our Daily MedsOur Faithfulness to the PastOur Posthuman FutureOut of EdenOut of Its MindOut of the ShadowsOverdosed AmericaOxford Handbook of Psychiatric EthicsOxford Studies in Normative EthicsOxford Studies in Normative Ethics, Volume 7Oxford Textbook of Philosophy of PsychiatryPassionate DeliberationPatient Autonomy and the Ethics of ResponsibilityPC, M.D.Perfecting VirtuePersonal AutonomyPersonal Autonomy in SocietyPersonal Identity and EthicsPersonalities on the PlatePersonhood and Health CarePersons, Humanity, and the Definition of DeathPerspectives On Health And Human RightsPharmaceutical FreedomPharmacracyPharmageddonPhilosophy and This Actual WorldPhilosophy of BiologyPhilosophy of Technology: The Technological ConditionPhysician-Assisted DyingPicturing DisabilityPilgrim at Tinker CreekPlaying God?Playing God?Political EmotionsPornlandPowerful MedicinesPractical Autonomy and BioethicsPractical EthicsPractical Ethics for PsychologistsPractical RulesPragmatic BioethicsPragmatic BioethicsPragmatic NeuroethicsPraise and BlamePreferences and Well-BeingPrimates and PhilosophersPro-Life, Pro-ChoiceProcreation and ParenthoodProfits Before People?Progress in BioethicsProperty in the BodyProzac As a Way of LifeProzac on the CouchPsychiatric Aspects of Justification, Excuse and Mitigation in Anglo-American Criminal Law Psychiatric EthicsPsychiatry and EmpirePsychological Concepts and Biological PsychiatryPsychology and Consumer CulturePsychology and LawPsychotropic Drug Prescriber's Survival GuidePublic Health LawPublic Health Law and EthicsPublic PhilosophyPunishing the Mentally IllPunishmentPursuits of WisdomPutting Morality Back Into PoliticsPutting on VirtueQuality of Life and Human DifferenceRaceRadical HopeRadical VirtuesRape Is RapeRe-creating MedicineRe-Engineering Philosophy for Limited BeingsReason's GriefReasonably ViciousReckoning With HomelessnessReconceiving Medical EthicsRecovery from SchizophreniaRedefining RapeRedesigning HumansReducing the Stigma of Mental IllnessReflections on Ethics and ResponsibilityReflections On How We LiveReframing Disease ContextuallyRefusing CareRefuting Peter Singer's Ethical TheoryRelative JusticeRelativism and Human RightsReligion ExplainedReprogeneticsRescuing JeffreyRespecting AnimalsResponsibilityResponsibility and PsychopathyResponsibility and PunishmentResponsibility and PunishmentResponsibility from the MarginsResponsible GeneticsRethinking CommodificationRethinking Informed Consent in BioethicsRethinking Mental Health and DisorderRethinking RapeReturn to ReasonRevolution in PsychologyRightsRights, Democracy, and Fulfillment in the Era of Identity PoliticsRisk and Luck in Medical EthicsRobert NozickRousseau and the Dilemmas of Modernity Rule of Law, Misrule of MenRun, Spot, RunRunning on RitalinSatisficing and MaximizingSchadenfreudeSchizophrenia, Culture, and SubjectivityScience and EthicsScience in the Private InterestScience, Policy, and the Value-Free IdealScience, Seeds and CyborgsScratching the Surface of BioethicsSecular Philosophy and the Religious TemperamentSeeing the LightSelf-ConstitutionSelf-Made MadnessSelf-Trust and Reproductive AutonomySentimental RulesSex Fiends, Perverts, and PedophilesSex OffendersSex, Family, and the Culture WarsSexual DevianceSexual EthicsSexual PredatorsSexualized BrainsShaping Our SelvesShock TherapyShould I Medicate My Child?ShunnedSick to Death and Not Going to Take It AnymoreSickoSide EffectsSidewalk StoriesSister CitizenSkeptical FeminismSocial Dimensions of Moral ResponsibilitySocial Inclusion of People with Mental IllnessSocial JusticeSociological Perspectives on the New GeneticsSome We Love, Some We Hate, Some We EatSovereign VirtueSpeech MattersSpiral of EntrapmentSplit DecisionsSticks and StonesStories MatterSubhumanSubjectivity and Being SomebodySuffering, Death, and IdentitySuicide ProhibitionSurgery JunkiesSurgically Shaping ChildrenTaking Morality SeriouslyTaming the Troublesome ChildTechnology and the Good Life?TestimonyText and Materials on International Human RightsThe Age of CulpabilityThe Age of CulpabilityThe Aims of Higher EducationThe Almost MoonThe Altruistic BrainThe American Psychiatric Publishing Textbook of Forensic PsychiatryThe Animal ManifestoThe Animals' AgendaThe Art of LivingThe Autonomy of MoralityThe Beloved SelfThe Best Things in LifeThe Big FixThe Bioethics ReaderThe Biology and Psychology of Moral AgencyThe Blackwell Guide to Medical EthicsThe Body SilentThe BondThe Book of LifeThe Burden of SympathyThe Cambridge Companion to Virtue EthicsThe Cambridge Companion to Virtue EthicsThe Cambridge Textbook of BioethicsThe Case against Assisted SuicideThe Case Against PerfectionThe Case Against PunishmentThe Case for PerfectionThe Case of Terri SchiavoThe Challenge of Human RightsThe Character GapThe Code for Global EthicsThe Colonization Of Psychic SpaceThe Commercialization of Intimate LifeThe Common ThreadThe Connected SelfThe Constitution of AgencyThe Cow with Ear Tag #1389The Creation of PsychopharmacologyThe Criminal BrainThe Decency WarsThe Difficult-to-Treat Psychiatric PatientThe Disability PendulumThe Disability Rights Movement: From Charity to ConfrontationThe Domain of 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WeakWar, Torture and TerrorismWarrior's DishonourWeaknessWelfare and Rational CareWhat are you staring at?What Genes Can't DoWhat Have We DoneWhat Is a Human?What Is Good and WhyWhat Is Good and WhyWhat Is the Good Life?What Price Better Health?What Should I Do?What We Owe to Each OtherWhat Would Aristotle Do?What's Good on TVWhat's Normal?What's Wrong with Children's RightsWhat's Wrong with Homosexuality?What's Wrong With Morality?When Is Discrimination Wrong?Who Holds the Moral High Ground?Who Owns YouWho Qualifies for Rights?Whose America?Whose View of Life?Why Animals MatterWhy Animals MatterWhy Does Inequality Matter?Why Honor MattersWhy I Burned My Book and Other Essays on DisabilityWhy Not Kill Them All?Why Punish? How Much?Why Some Things Should Not Be for SaleWisdom, Intuition and EthicsWithout ConscienceWomen and Borderline Personality DisorderWomen and MadnessWondergenesWould You Kill the Fat Man?Wrestling with Behavioral GeneticsWriting About PatientsYou Must Be DreamingYour Genetic DestinyYour Inner FishYouth Offending and Youth Justice Yuck!
The moral issues concerning compulsory psychiatric care has been a topic
of debate for decades. Over time, legislatures all over the world have
struggled to strike a balance between values both vital and conflicting: on the
one hade the integrity and autonomy of people with mental illness and on the
other hand, societys obligation to help those in need in combination with its
interest to protect itself from persons perceived to be dangerous. Most of the
academics engaged in this discussion have a background in sociology, law,
philosophy or psychiatry. As a scholar of political science, Judith Lynn Failer
provides a fresh perspective by expanding issues about patient rights into the
broader context of liberal rights in general. In an original approach, she
investigates legal discourse about civil commitment to backtrack underlying assumptions
about regular, full rights associated with citizenship. The aim then
becomes to sort out who qualifies for rights.
Drawing on liberal theory of rights, Failer starts out establishing that
any restriction to a persons rights must be motivated by an inability to fulfill
the duties that are tied to the right at stake. For example, it would be unjust
to deprive a person of her right to vote only because she is economically
deficient, even though it would be reasonable to deprive the same person of her
right to enter into a contract. Going through mental health legislation as well
as legal cases in the U.S. history, Failer finds a strong pattern of continuity
in legal reasoning. Although commitment standards have been constructed in
various manners, she finds six legal images that are continuously invoked
regardless of time and place: four of those images relate to the states duty
to enforce coercion to help people in need (parens patrie power), while
two images highlight the necessity to protect society from dangerous persons
The person in need
The dangerous person
The economically deficient person
The danger waiting to happen
The bad family member
The imminent danger
Failer then evaluates if these legal images can justify the
comprehensive infringement of rights that civil commitment constitutes. Here,
she rules out four of these images as insufficient grounds for instigating
detention. This should be seen as a major critique of current practice - some
mentally ill citizens are unfairly incarcerated. The only legal images that
could justify civil commitment are the nonsurvivor and the imminent danger.
In the first case, she argues that if a person cannot survive in freedom, then
the freedom that his rights seek to protect becomes meaningless. In the second
case, preventive detention is justified on the grounds that a person - who has
recently engaged in violent acts - has a responsibility to avoid situations
where she might cause further harm. This is a productive attempt to avoid some
of the ethical pitfalls in connection with the issue of preventive detention,
e.g. the notorious difficulty to make reliable predictions of dangerousness.
However, it seems that there remains a problem regarding how to draw the line
between the danger waiting to happen and the imminent danger. Moreover, it
is not perfectly clear why these categories should be treated differently: one
could argue that persons who have manifested angry outbursts, violent ideations
or carry diagnoses that correlate with violent behavior (dangers waiting to
happen in Failers terms), are under the same duty to avoid situations where
they might harm others.
As indicated in the title of the book, part of the stated purpose is to
frame the discussion about rights theory in the particular context of the
homeless mentally ill. Accordingly, the backbone of the empirical analysis of
modern legal practice is a minute and illuminating discussion of a single
example: a high profile case concerning the commitment of Joyce Brown, a woman
who lived on the streets of New York. Although the analytical commitment to a
single case is quite rewarding, it seems to me that the particular situation of
the homeless is of minor relevance when Failer completes her theoretical
arguments. There is no discussion as to why this particular case was chosen,
and how the analytical devotion to it may affect her conclusions. To put this
critique positively, it appears that Failers conclusions deserve to be generalized
further than to the homeless mentally ill.
In general, one would like to see more description of sampling and
reflection over methodological choices. The text leaves little room for the
reader to make a critical evaluation of methodology. Even if it is not
explicitly stated, the book appears to be oriented towards a U.S. audience. In
my opinion, Failers analysis would have profited from expanding the scope: her
arguments are applicable to more than one nation. At the same time, the task of
developing rights theory would surely gain if international comparisons had
been made - if not from using primary data from other countries, at least by
drawing on knowledge from the international literature. For example, it appears
highly probable that the six legal images identified by Failer should prove
meaningful in an international context as well. From this reviewers domestic
Swedish viewpoint, it is fascinating to meet the continuous referral to human
rights in concrete legal arguments. In Swedish court hearings concerning
compulsory psychiatric care, the notion of rights is referred to only as a rare
exception. Hence, it might be fruitful to pay more attention to the particular
cultural context that accounts for the devotion to the notion of rights in
legal rhetorics in the United States.
As an overall impression, Failer manages to make a well-structured,
original and persuasive contribution to an important political/moral
discussion. The critical implications of her work invites further exploration
and development of the arguments. For example: if detention is too strong an
infringement of rights for a suffering person, are alternative coercive
measures conceivable? And is it possible to separate matters of individual
rights from the social contexts in which the suffering persons may or may not
acquire the sufficient support to manage their lives? Coercive measures are
frequently thought of as a last resort - but perhaps a focus on paternal rights
securing that the mentally ill acquire more resourceful support from society
would help avoid the very situation where detention is called for?
© 2003 Stefan Sjöström
Sjöström, PhD, is Research Fellow at the Department of Social Work, Umeå
University, Sweden. His research focuses on communication and coercive
interventions in the Swedish welfare system. He is author of the book Party or patient? Discursive practices
relating to coercion in psychiatric and legal settings (Boréa, 1997).
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