The Ethics of Advocacy for the Mentally 111: Philosophic and Ethnographic Considerations

• Publication year: 2000
• Citation: Vol. 24 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 2FALL 2000

The Ethics of Advocacy for the Mentally 111: Philosophic and Ethnographic Considerations

Bruce A. Arrigo(fn*) and Christopher R. Williams(fn**)

I. Introduction: on the notion of justice and Ethics in Law and Psychology(fn1)

The field of law and psychology emerged in the late 1960s with an avowed commitment to justice.(fn2) This emphasis on justice was a deliberate attempt to make the forensic domain "relevant" by "challeng[ing] and transforming] a prevailing 'judicial common sense' that had been used to keep the disenfranchised down so long".(fn3) The medicolegal(fn4) field, with its identified "ultimate purpose" [o]f promoting] justice and assessing] the role of law in achieving a just social order"(fn5) was institutionalized with the 1968 founding of the American Psychology-Law Society (APLS).(fn6) Unfortunately for the early pioneers of the APLS movement, the centrality of justice in psycholegal research mostly remainfs] diverted.(fn7)

Today, in far too many research settings, psycholegal scholarship focuses on a limited and narrowly construed collection of topics.(fn8) [For example,] jury behavior, eyewitness testimony, sex offender treatment, and expert witness studies[,] while certainly interesting . . . , seldom, if ever, explore prospects for broad-based social or political change,(fn9) or examine opportunities for advancing the interests of citizen rights and/or collective justice.(fn10) Despite these shortcomings, the forensic field is, at its core, about justice.(fn11) This means that questions concerning psycholegal practices, and the manner in which people are socially, politically, economically, and philosophically affected by them require careful and considerable scrutiny.(fn12)

One domain where law-psychology-justice research has yet to assess forensic intervention entails the ethics of advocacy for the mentally ill. Broadly speaking, the concept of "ethics" has increasingly assumed a more passive, perhaps trivialized, role within the various academic fields where it was recognized as a valuable dimension and a necessary condition for ensuring the humanity of people.(fn13) This is most troubling in the law-psychology domain.(fn14) To be clear, our relegation of ethics to its more pedagogical and sanitary status forfeits its very foundations; that is, it undercuts the significance of moral contemplation and the importance of justice in human social interaction. Modern science teaches us to understand the ethical sphere within the imposed, coercive confines of its jurisdiction.(fn15) That is to say, ethics is "built" upon an edifice, a structure of abstractions resting solely on the intangible underpinnings upon which it is posed.(fn16) What is "selected out" as defining ethical boundaries is that which can be reduced to the abstract.(fn17)

In the fourteenth century, William of Ockham proposed an economic principle that has indirectly come to influence the fabric of our ethical edifice. Ockham's Razor states that "entities are not to be multiplied beyond necessity."(fn18) In other words, what is simplest is best. Thus, an abstract rule becomes a rule because it is simple to follow-to obey. And, equally, our identification of those whose behavior conflicts with or otherwise transgresses our rules becomes less ambiguous and less subject to debate. Indeed, codification of rules intends absence of ambiguity and of individual decision-making.(fn19) Decisions are, instead, produced by a representative democracy-the select few who, by way of "expert" knowledge, are deemed competent and are bestowed the power to speak for (presumably on behalf of) other constituencies. Again, as we will argue below, this is particularly disturbing in the domain of psychology and law, where mental health systems users are routinely subjected to the expertise of clinicolegal decision brokers,(fn20) such as judges and psychiatrists, whose choices all too frequently activate transcarcerative(fn21) ends.

Those phenomena that are easily subjected to "degrees of control and analysis necessary for the formulation of abstract laws"(fn22) are codified in such a way as to demand control.(fn23) What is more amenable to the formulation of abstract laws than laws (or rules) themselves?(fn24) Such is the constitution of ethical codes. Many systems-including the mental health and legal apparatuses-have been constructed (codified) in terms of abstract laws that collectively comprise an intimidating structure, turning volitional subjects into impugned objects who succumb to the will of the code in unreflective, subjugated obedience.(fn25) Indeed, what person or group could, without fear of legal reprisal or sanctioned repercussion, brave the turbulent waters of defiance and resistance-that is, embrace individual reason without (potentially) forfeiting something meaningful in the process? We seek such an edifying structure in our impetuous escape from the anxiety of personal choice and responsibility. Rollo May refers to this as the "edifice complex."(fn26) The "escape" is treated at length by Fromm in his work Escape from Freedom.(fn27)

What all this suggests is that we, as constituent practitioners and/or scholars in the world of humanism and of human rights, have acquiesced to an unreflective existence within the preconfigured borders of (ethical) codes laid before us by our ancestors.(fn28) This legacy does not imply that we, as individuals, necessarily have made a choice to escape from the freedom of responsibility. What it does, in fact, suggest is that we no longer enjoy the power to make such a choice. At some historical point, the representative powers that be concluded that it was in our best interest to be subjected to constraints on moral discretion. One can only assume that our predecessors were unable to find the possibility of such unbridled freedom liberating. Perhaps a select few made choices that were not in the best interests of their clients and/or communities; consequently, such decision-making power was withdrawn from their/our possession. The result, of course, continues to be a circumscribed education in morality and justice.

To be sure, many of us regard ethics as the study of rules or codes of conduct that define professional choice and responsibility.(fn29) Regardless of how one may feel about the presence of such rules, we have, undoubtedly, lost touch with what ethics really is. We no longer deliberately regard ethics as that which embodies concepts such as good, right, virtue, freedom, choice, and the morality that constitutes an ethical mode of being. Perhaps we are aware that ethical rules or codes are presumably assembled upon such conceptual underpinnings, yet we frequently take this for granted: the recipe that has become ethics is merely "taught" to us. As a consequence, students and practitioners memorize selected ethical precepts that apply to their potential or actual areas of practice. What we often neglect, however, are the critical and philosophical bases upon which such rules are formed. In other words, there is a certain morality and a particular sense of justice that encompasses every rule that we are taught or, perhaps, are teaching. On too many occasions, we unreflectively abandon the theoretical (and ideological) explorations that must necessarily accompany such instruction.(fn30)

In its relationship to morality and justice, we contend that ethics is not something that should be taught. Rather, it is something that should be explored, something one comes to understand on one's own terms. As Schopenhauer duly noted:As the biggest library if it is in disorder is not as useful as a small but well-arranged one, so you may accumulate a vast amount of knowledge but it will be of far less value to you than a much smaller amount if you thought it over for yourself....(fn31)

When we experience knowledge-a knowledge that one must come to personally-only then can our decisions or choices be regarded as truly ethical. The distinction between the human being and the automaton posing as human is found within this process of reflection and exploration.

Our intention in the present Article is to explore the various paths that influence the often unquestioned choices we are impelled by rule/law to make, and those we may, at times, ponder. An exploration of ethics necessarily encourages us to understand why we make the choices that we do. From our perspective, a choice that is based merely on custom, convention, rule, etc., is not an ethical choice at all. And, without choice, the humanity we claim to hold so dear in our professional pursuits not only disappears, it becomes nonexistent.

In this Article, we critically address several philosophical underpinnings of ethical decision-making that impact persons with psychiatric disorders. We focus our attention, however, upon an admittedly limited target area. Thus, we canvass a select number of significant issues that pose unique problems for humanity. The purpose of these excursions is that of reflection. In brief, we will speculatively examine: (1) the relationship between human rights and the law; (2) the relationship between mental illness and the law (i.e. the rights of the mentally ill); (3) the ethics of involuntary confinement (i.e., taking away and giving back rights to the mentally ill); (4) the ethics of advocating for the rights of the mentally...