Academic journal article Journal of Sociology & Social Welfare

Fairness Issues in Law and Mental Health: Directions for Future Social Work Research

Academic journal article Journal of Sociology & Social Welfare

Fairness Issues in Law and Mental Health: Directions for Future Social Work Research

Article excerpt

Concepts from the procedural justice literature in social psychology are examined that offer useful guidance for social work researchers with interests in investigating informal adjudications, speciality treatment courts, and other areas of the administrative process previously neglected in mental health services research. These theoretical concepts are offered as an alternative to the therapeutic jurisprudence framework being adopted by some social workers in the field of law and mental health. The issues outlined in this paper also draw on the health services and psychotherapy literature to highlight issues involving process and procedure as social justice and their significance for advancing a new role for social work researchers in the field of law and mental health research.

Keywords: procedural justice, law and mental health, therapeutic jurisprudence, treatment courts


This paper examines issues of fairness and justice in the field of law and mental health. Justice is one of the many moral standards employed by philosophers and ethicists to evaluate the social institutions of any society (Folger & Cropanzano, 1998; Cohen, 1989). Justice has become a major area of study in the social and the behavioral sciences (Bierhoff, Cohen & Greenberg, 1986; Deutsch, 1985; Folger, 1984; Lerner & Lerner, 1981; Mikula, 1980; Wakefield, 1988a; Wakefield, 1988b). In addition, there is a burgeoning body of research derived from classic works in social psychology on procedural (Deutsch, 1975; Lind & Tyler, 1988; Thibault & Walker, 1975) and distributive (Greenberg & Cohen, 1982; Walster, Walster, & Berscheid, 1978) issues of justice.

Although social work as a profession has had a longstanding commitment to values of social and economic justice (CSWE, 1994; NASW, 1999), social work researchers have contributed minimally to our understanding of the role of justice in the field of law and mental health. Psychologists, psychiatrists, and lawyers have dominated most advances in this field of scientific inquiry. Yet these professionals do not possess the same avowed commitments to social justice as the profession of social work.

In the field of law and mental health, therapeutic jurisprudence has gained prominence as a useful framework for examining issues of law and policy (Tomkins & Carson, 1999). Therapeutic jurisprudence (TJ) directs researchers to concentrate on the law as a therapeutic agent by examining the therapeutic consequences of the law (Madden & Wayne, 2003). This approach to social legal inquiry focuses on whether the legal rule or practice contributes to the psychological and physical well-being of a person who is subject to legal proceedings (Rottman & Casey, 1999). For this reason, some social workers are also looking to this framework as an important guide to research and practice in the field of law and mental health (Madden & Wayne, 2003).

While this framework is consistent with values that are important to social workers, it does not take into account issues of fairness involving procedures and interpersonal processes that influence how consumers evaluate the fairness of their mental health services. Indeed TJ helps us focus on effective outcomes, but does not specify or give explicit theoretical guidance as to how the law should promote the achievement of therapeutic effects in any area of mental health law (Carson, 2003; Kress, 1999; LaFond, 1999; Sales & Shulman, 1996). This lack of theoretical guidance is one of the important reasons why social workers should be open to integrating other useful conceptual frameworks into their research of issues involving the interface of law and mental health.

The purpose of this paper is to examine how evolving theoretical conceptions of fairness in social psychology can assist social workers in advancing research in the field of law and mental health. Wakefield (1988a; 1988b) established the utility of employing distributive justice as a framework for guiding social work practice and the conceptual links between psychotherapy and justice. …

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