Vol. 8 No. 1 (January 1998) pp. 72-74.

PARTY OR PATIENT? DISCURSIVE PRACTICES RELATING TO COERCION IN PSYCHIATRIC AND LEGAL SETTINGS by Stefan Sjostrom.  Umea, Sweden: Borea Bokforlag, 1997. 354 pp. ISBN 91-9726090-4-2.

Reviewed by Judith Lynn Failer, Visiting Fellow in Politics, Ethics, and Public Affairs, Princeton University, Assistant Professor of Political Science and American Studies, Indiana University, Bloomington.
 

Legal studies have come a long way since they reflected the old beliefs that law is merely what the judge says it is or that the only place where law matters is in a court. In recent years, important research by scholars as diverse as Austin Sarat (1995) and Wayne Moore (1996) has revealed how law is practiced and implemented by non-judicial actors such as mediators, district attorneys, other lawyers, and private citizens. Interesting work by Robert Cover (1983) and William F. Harris (1992) has highlighted how law shapes our polities and ostensibly non-legal activities, too. In this new book by a lecturer in communication studies at Linkoping University in Sweden, we get glimpses of how psychiatrists use a new law, Sweden's new Compulsory Psychiatric Care Act, to coerce patients into receiving unwanted mental health treatment in hospitals. The book does not aim to provide novel insights into the workings of law per se. Nevertheless, it does illustrate some interesting ways in which doctors who are not legal experts use their understanding of the law both to manipulate their patients and to convince courts to require the paternalist coercion the doctors believe will benefit the patients. To this end, the study helps extend the project of understanding law's full scope.

The book's stated purpose is to describe professional discourse about psychiatric assessments for civil commitment, or involuntary psychiatric hospitalization. The author gathered his data by spending eighteen months doing ethnographic research in an emergency unit and then in two closed inpatient units in a psychiatric hospital in Sweden. There he observed psychiatrists and other mental health workers as they examined, interacted with, observed, discussed, diagnosed, treated, and reported on patients in their care. He also sat in on and recorded fourteen legal hearings in which patients contested their hospitalization. At these hearings, which he was able to tape-record, the author paid special attention to the ways by which psychiatric information acquired in the hospital got translated into legal evidence in the courtroom.

The book itself is divided into three main sections with an additional concluding chapter and five appendices. In the first part, Sjostrom provides five detailed chapters for background. After summarizing his argument in Chapter One, he spends the next three chapters summarizing the sociological literature on mental illness and ethnographic methodology that shape his study, and concludes with a long recitation of the history of Swedish laws on civil commitment. Readers familiar with mental health law may choose to skim these chapters as they serve their stated purpose without breaking any new ground.

The second part contains the book's most useful contribution for students of law. There, the author begins with a chapter that carefully traces one patient's "path" through the clinic. Sjostrom not only observes who interacts with the patient and for how long. He also scrutinizes the paperwork that documents the treatment, including both the legal forms that will be used in court to justify the detention as well as the medical records that will aid the other mental health workers as they determine and implement their treatment plan for him.

The focus on one patient becomes even more interesting in the next two chapters where Sjostrom places the case in the context of the hospital's general psychiatric practices. Most of his findings are consistent with those of previous sociological studies of hospitals for the mentally ill. For those interested in the legal aspects of civil commitment, the author also provides some valuable information when he describes how doctors use the commitment law to coerce patients into receiving the psychiatric treatment they so often resist. For example, Sjostrom finds that once doctors have decided they think a patient should be committed, they shape their written comments on intake and summary sheets of the patients' progress to satisfy the law's criteria for involuntary hospitalization. Hence, even though the treating staff tends to use vernacular language in discussing the patient in the hospital, they take care to ensure that any written documentation that might end up in court relies extensively on psychiatric argot.

Similarly, while the mental health workers avoid talking about diagnoses in their daily operations, their official records emphasize diagnostic categories that make the patient look most commitable. In this way, they use the law as a tool to ensure that they are able to provide the patients with the care the staff believes they need.

The doctors' views of the patients' needs become all the more important when the patients who resist hospitalization get to court. In Part III, Sjostrom relates his observations from the administrative court that hears cases of contested commitment. Again, most of what he finds is consistent with previous studies of commitment hearings. For example, he finds that although the patients are officially "parties" to their suits to avoid unwanted hospitalization, the court tends to treat them more as "patients" who need help (hence the book's title). Or, for example, he finds that courts tend to defer to psychiatric experts when deciding whether to authorize the commitments. As Sjostrom acknowledges, both Holstein (1993) and Warren (1992) have reported substantially the same thing in their books on civil commitment in the United States. That the court tends to defer to psychiatrists, however, is worth noting again, as the practice raises important moral and political questions about a common legal practice.

Indeed, this book is of interest to legal scholars primarily because it documents how unelected and scarcely accountable private actors interpret and implement the law. On one level, its findings call us to consider whether we approve of law's operation in psychiatric settings. After all, people who are involuntarily committed suffer a change of legal status that brings with it the loss of many civil rights. With so much at stake for citizens facing commitment, it is important to know who decides their civic standing. And it is only after we have ascertained that psychiatrists are making these substantially political and legal decisions, an empirical matter that this book substantiates, that we will be in position to ask the normative questions the study raises: whether psychiatrists ought to wield the kind of legal and political power they do.

On a different level, the book's findings about law's life out of court confirms the turn that legal studies has taken in the last few decades: asserting the need to study the nature and scope of law practiced outside of traditional legal arenas by nontraditional legal actors.

Because the book is mostly a description of professional rhetoric, it does not try to address the normative questions about politics and law that it raises. The author acknowledges that the coercion he observes in the workings of Sweden's new commitment law is "problematic," but he eschews the opportunity to discuss it at any significant length. Nevertheless, the practices Sjostrom depicts are worthy of note by scholars with normative interests in who decides who qualifies for the full menu of regular civil rights. They also point to fertile ground for new studies of how law gets implemented.

One final note of warning: this book is written in a very formal style that sometimes makes it difficult to read. It is full of self-referential descriptions about what turn the discussion is about to take. It also spends considerable time linking its own observations to findings in previously published studies. These rhetorical qualities tend to slow down the book's flow without adding substantially to its clarity or argumentative power. The book's value in documenting psychiatric power through civil commitment law, however, may well make it worth the effort.

Note: Thank you to David Orentlicher for his good counsel in preparing this review.

 
REFERENCES

Cover, Robert. 1983. "The Supreme Court, 1982 Term--Foreword: Nomos and Narrative." HARVARD LAW REVIEW 97:4.

Harris, William F., II, THE INTERPRETABLE CONSTITUTION. 1992. Baltimore: The Johns Hopkins University Press.

Holstein, James. 1993. COURT ORDERED INSANITY: INTERPRETIVE PRACTICE AND INVOLUNTARY COMMITMENT. Hawthorne, N.Y.: Aldine de Gruyter.

Moore, Wayne D. 1996. CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE. Princeton: Princeton University Press.

Sarat, Austin, and William L.F. Felstiner. 1995. DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL PROCESS. New York: Oxford University Press.

Warren, Carol A.B. 1982. THE COURT OF LAST RESORT: MENTAL ILLNESS AND THE LAW. Chicago: The University of Chicago Press.


Copyright 1998