Redefining mental health law

Mental health law traditionally focuses on preserving the civil and constitutional rights of people labeled mentally ill. However, because of fundamental changes in the public mental health system. most people labeled mentally ill no longer reside in state psychiatric hospitals. As a result, the core policy issue in mental health today is assuring access to community based services, supports, and housing which enable people to live successfully in the community. Because of this different environment, the definition and scope of mental health law must be expanded dramatically if those interested in the subject are to continue to influence mental health policy. This article examines five contemporary mental health policy issues, including changes in reimbursement systems and the growth of the consumer and family movements, that illustrate the legal, policy, and research questions which will emerge in an expanded and redefined mental health law agenda. The author thanks Ingo Keilitz, Thomas Hafemeister, and Pamela Casey for their review of earlier drafts of this article.     

Putting mental health into mental health law

This article critiques the traditional doctrinal approach to mental health law and compares the traditional approach with a new, interdisciplinary approach known as therapeutic jurisprudence. Therapeutic jurisprudence views the law itself as a potential therapeutic agent. Examples are given of how legal rules, procedures, and the roles of legal actors may produce therapeutic or antitherapeutic results and of how the law may improve therapeutic outcomes without sacrificing the interests of justice.     

Human rights and health law

Important statutory and common law developments are changing the landscape of health law in Australia. Human rights considerations are formally included amongst the factors to be applied in the interpretation of statutory provisions and evaluating the lawfulness of actions on the part of government instrumentalities. The Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) create limited bills of rights at State/Territory level in two Australian jurisdictions. Although neither is entrenched, they have the potential to make it more difficult for government to promulgate laws that are inconsistent with human rights, as defined. They will have important repercussions for the evolution of health law in these jurisdictions. The decision of Royal Women's Hospital v Medical Practitioners Board (Vic) [2006] VSCA 85 by the Victorian Court of Appeal has also provided a legitimation for parties to incorporate human rights perspectives in submissions about the interpretation of statutory provisions where health rights are in conflict.     

The invention of health law

By default, the courts are inventing health law. The law governing the American health system arises from an unruly mix of statutes, regulations, and judge-crafted doctrines conceived, in the main, without medical care in mind. Courts are ill-equipped to put order to this chaos, and until recently they have been disinclined to try. But political gridlock and popular ire over managed care have pushed them into the breach, and the Supreme Court has become a proactive health policy player. How might judges make sense of health law's disparate doctrinal standards? Scholars from diverse ideological starting points have converged toward a single answer: the law should look to deploy medical resources in a systematically rational manner, so as to maximize the benefits that every dollar buys. This answer bases the orderly development of health care law upon our ability to reach stable understandings, in myriad circumstances, of what welfare maximization requires. In this Article, I contend that this goal is not achievable. Scientific ignorance, cognitive limitations, and normative disagreements yield shifting, incomplete, and contradictory understandings of social welfare in the health sphere. The chaotic state of health care law today reflects this unruliness. In making systemic welfare maximization the lodestar for health law, we risk falling so far short of aspirations for reasoned decision making as to invite disillusion about the possibilities for any sort of rationality in this field. Accordingly, I urge that we define health law's aims more modestly, based on acknowledgement that its rationality is discontinuous across substantive contexts and changeable with time. This concession to human limits, I argue, opens the way to health policy that mediates wisely between our desire for public action to maximize the well being of the many and our intimate wishes to be treated noninstrumentally, as separate ends. I conclude with an effort to identify the goals of health law, so constructed, should pursue and to suggest how a strategy of accommodation among these goals might apply to a variety of legal controversies.     

Alaska public health law reform

The Turning Point Model State Public Health Act (Turning Point Act), published in September 2003, provides a comprehensive template for states seeking public health law modernization. This case study examines the political and policy efforts undertaken in Alaska following the development of the Turning Point Act. It is the first in a series of case studies to assess states' consideration of the Turning Point Act for the purpose of public health law reform. Through a comparative analysis of these case studies and ongoing legislative tracking in all fifty states, researchers can assess (1) how states codify the Turning Point Act into state law and (2) how these modernized state laws influence or change public health practice, leading to improved health outcomes.