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The compliant court: procedural fairness and social control in compulsory community care
Umeå University, Faculty of Social Sciences, Department of Social Work.ORCID iD: 0000-0002-2953-460X
Umeå University, Faculty of Social Sciences, Department of Social Work.ORCID iD: 0000-0002-4540-5373
Umeå University, Faculty of Social Sciences, Department of Social Work.ORCID iD: 0000-0002-6330-5640
2014 (English)In: International Journal of Law and Psychiatry, ISSN 0160-2527, E-ISSN 1873-6386, Vol. 37, no 6, p. 543-550Article in journal (Refereed) Published
Abstract [en]

Compulsory community care (CCC) was introduced in Sweden in 2008. This article investigates all written court decisions regarding CCC over a 6 month period in 2009 (N = 541). The purpose is to examine how the legal rights of patients are protected and what forms of social control patients are subjected to. 51% of CCC patients are women and 84% are being treated for a psychosis-related disorder. In the court decisions, only 9% of patients are described as dangerous to themselves, while 18% are regarded a danger to others. The most common special provisions that patients are subjected to are medication (79%) and a requirement that they must maintain contact with either community mental health services (51%) or social services (27%). In the decisions, both the courts and court-appointed psychiatrists agree with treating psychiatrists in 99% of cases. Decisions lack transparency and clarity, and it is often impossible to understand the conclusions of the courts. There is considerable variation between regional courts as regards the provisions to which patients are subjected and the delegation of decision-making to psychiatrists. This means that decisions fail to demonstrate clarity, transparency, consistency and impartiality, and thus fail to meet established standards of procedural fairness. Surveillance techniques of social control are more common than techniques based on therapy or sanctions. Because of the unique role of medication, social control is primarily imposed on a physical dimension, as opposed to temporal and spatial forms. The article concludes that patients are at risk of being subjected to new forms of social control of an unclear nature without proper legal protection.

Place, publisher, year, edition, pages
Elsevier, 2014. Vol. 37, no 6, p. 543-550
Keywords [en]
compulsory community care, community treatment orders, outpatient coercion, court hearings, legal rights, social control
National Category
Other Social Sciences not elsewhere specified
Identifiers
URN: urn:nbn:se:umu:diva-96401DOI: 10.1016/j.ijlp.2014.02.027ISI: 000345542000002Scopus ID: 2-s2.0-84909980797OAI: oai:DiVA.org:umu-96401DiVA, id: diva2:764458
Available from: 2014-11-19 Created: 2014-11-19 Last updated: 2018-06-07Bibliographically approved
In thesis
1. Tvångsvård i frihet: tillkomst, implementering och rättstillämpning av öppen psykiatrisk tvångsvård
Open this publication in new window or tab >>Tvångsvård i frihet: tillkomst, implementering och rättstillämpning av öppen psykiatrisk tvångsvård
2018 (Swedish)Doctoral thesis, comprehensive summary (Other academic)
Alternative title[en]
Coercion in freedom : genesis, implementation, and legal rights in compulsory community care
Abstract [en]

This thesis aims to analyze compulsory community care (CCC) as a social and normative practice in different contexts in the Swedish welfare system. The research questions are:

- How can the motives to introduce CCC in Sweden and other Western countries be understood?

- What happens in and between psychiatric and social service organizations when CCC is implemented?

- How are the legal rights of patients protected and what forms of social control of patients is discernible in written court decisions regarding CCC?

- What normative positions regarding autonomy is the CCC legislation based on?

- How can CCC be understood from steering, historic and power perspectives?

The four first research questions corresponds to the four research studies included in the thesis and the fifth question relates to the material as a whole.

The empirical material for the first study mainly consists of documents from the parliamentary process. For the second study, 15 interviews with employees in psychiatric and social services were conducted. For the third study, all written court decisions over a 6 month period (N=541) were investigated. In the fourth study, the analysis is primarily based on the current legislation and its history.

Community care has already taken over most tasks of the old institutions. With the adoption of CCC, even the coercive measures are now formally found in community settings. CCC was adopted despite lack of evidence supporting its effectiveness. Although the policy process started in the aftermath of high-profile crimes, the government bill was focused on integration and rehabilitation with the stated intention to reduce coercive powers. While CCC entails an actual expansion of coercive powers, those coercive elements are downplayed in the bill. CCC allows for preventative restrictions on non-violent civilly committed patients. The CCC example shows that political steering is not something that automatically restricts discretion over the medical profession. Earlier political steering strategies had failed to reduce the excessive clinical use of use of temporary leave. The introduction of CCC meant that politicians adapted legislation to previously undesired practices.

In psychiatric and social services, CCC is materialized as a physical object in the coordinated care plan. The interviewees talked about the template form for the coordinated care plan as almost synonymous with CCC. It helped clarify responsibilities and facilitated coordination between the organizations. These changes extended even beyond services for the targeted patients under CCC. The requirement of a coordinated care plan thus served as a political steering strategy for enhancing collaboration.

In the written court decisions about CCC we found deficiencies in procedural fairness in all four requirements for a fair trial that were investigated: transparency, clarity, consistency and impartiality. For example, more than 99 % of the decisions were made in favor of the claims of treating psychiatrist and a substantial minority of courts routinely delegated decision-making authority to treating psychiatrists. The special provisions often involved surveillance controlling techniques. The control is mostly physical, because of the unique role of medication, but also spatial and temporal. Even though no formal coercive measures are allowed, the special provisions as controlling measures seem to have real impact on patients. CCC may therefore be understood as disciplinary power.

A legal requisite for coercive care is that the patient oppose care. However, in practice it is assumed that a patient under CCC will accept the coercive elements (i.e. special provisions). The legal requisites for allowing and discharging from CCC are thus met at the same time. Restrictions of patient autonomy in the legislation is often motivated in terms of enhanced autonomy in the future, for example through avoiding relapse. Another rationale for the restriction of autonomy is to safeguard the health and quality of life of patients. There is no research evidence that compulsory community works. Accordingly, it is hard to identify what benefits CCC provide that can trump the autonomy of the patient.

Place, publisher, year, edition, pages
Umeå: Umeå universitet, 2018. p. 94
Series
Studier i socialt arbete vid Umeå universitet : avhandlings- och skriftserie, ISSN 0283-300X ; 90
Keywords
compulsory community care, community treatment orders, mental health policy, policy implementation, patient rights, social control, court rulings, autonomy
National Category
Social Work
Identifiers
urn:nbn:se:umu:diva-146889 (URN)978-91-7601-886-6 (ISBN)
Public defence
2018-05-18, Hörsal B, Samhällsvetarhuset, Umeå, 10:00 (Swedish)
Opponent
Supervisors
Available from: 2018-04-25 Created: 2018-04-22 Last updated: 2018-06-09Bibliographically approved

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Zetterberg, LivSjöström, StefanMarkström, Urban

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