Health Law and Policy, Law and Mental Health, the significance of the rule of law, professional knowledge and practice
An Introduction to the Lectures of Supreme Court of Canada Chief Justice Beverley McLachlin and Nova Scotia Provincial Court Judge Anne Derrick. What is the significance of the rule of law to the area of professional knowledge and practice that is “mental health”—or to the interaction of those two aspirational, one might say euphemistically-named social systems: the mental health and justice systems? This question centres upon the rule of law—specifically, I suggest (as I relate further in closing), a thick conception of the rule of law grounded in an ideal of state-subject reciprocity1 —and not, or not directly, upon the individual and social good of health. It is this overarching question that I wish to pursue in setting the stage for the two lectures that follow, in which prominent members of the Canadian judiciary address topics at the intersection of mental health and the law. It may be suspected that to take up the relationship between law and medicine, or more specifically between mental health law and mental health care, is to confront a deep and perhaps irresolvable divergence of values and ends: a clash of cultures.2 On one side of this divergence—an over-simplification which nonetheless reflects the typical contours of these debates is a position strenuously defended by some members of the mental health profession. This position, which is one of resistance to law, and which for some grounds actions expressly defiant of law, 3 is rooted in the argument that law is at best irrelevant to, and at worst an insensitive brake upon, the therapeutic ends of mental health practice. Indeed it may be argued that law, as applied to mental health interventions, supports absurd conclusions: conclusions wholly detached from reality, at least in the extreme cases in which controversies arise−reflecting a rigid privileging of abstract individual rights even in the face of grave health risks.4 From the other side, that of the mental health lawyer, may come the retort that our deepest human interest is the legally-privileged interest in directing our lives in accordance with our own values and experiences: the interest in personal autonomy. The lawyer may add, moreover, that mental health professionals are too quick to disrupt ordinary legal presumptions of individual liberty, capacity and decision-making authority, as if the power to do so flowed from medical expertise alone rather than from the specific terms of one or another publicly-conferred, carefully-circumscribed legal mandate.
Sheila Wildeman, "Law and Mental Health: A Relationship in Crisis? (Introduction)" (2010) 33:1 DLJ 1.