What Lies at the Intersection of Law and Psychiatric Nursing? Exploring the Process of Judiciarization in the Context of Mental Health
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What Lies at the Intersection of Law and Psychiatric Nursing? Exploring the Process of Judiciarization in the Context of Mental Health. Etienne Paradis-Gagné1, Jean-Daniel Jacob2 & Pierre Pariseau-Legault3 1Faculty of Nursing, Université de Montréal, 2School of Nursing, University of Ottawa, 3Department of Nursing, Université du Québec en Outaouais Cite As: Paradis-Gagne, E., Jacob, J.D. & Pariseau-Legault, P. (2020). What lies at the Intersection of Psychiatric Nursing? Exploring the Process of Judiciarization in the Context of Mental Health.Witness: The Canadian Journal of Critical Nursing Discoruse, Vol 2(2), pp 3-19 https://doi.org/10.25071/2291-5796.72 Abstract: In this article, our aim is to provide a critical analysis of the phenomenon of judiciarization of people diagnosed as mentally ill and its impact on nursing practice. In order to explore the issues inherent to this phenomenon, we employed the methodology of discursive analysis greatly inspired by the work of French philosopher Michel Foucault. The results of this analysis push our reflection on the experiences and practices that take place at the psychiatric and judicial interface, engaging in a critique of underlying goals of public protection, social control, and pastoral power being incorporated to nursing practice. While acting in seemingly humanistic and therapeutic roles of care, nurses are simultaneously and inevitably fulfilling a mandate of social control which, to date, remains relatively under documented. Key words: Foucault, pastoral power, mental health, psychiatric nursing, justice system involvement Introduction (Dvoskin, Knoll, & Silva, 2020), or what other authors rather define as trans- An increasing number of people diagnosed as institutionalization (Prins, 2011; Schneider, mentally ill (PDMI) are finding themselves 2015); that is, how individuals, supposedly on a judicial trajectory in Canada (Mental de-institutionalized as a result of community Health Commission of Canada, 2012; care policies, ended up simply shifting and Schneider, 2015). This phenomenon, known transitioning in different institutions, such as as judiciarization, is discussed in literature on prisons, tribunals and psychiatric institutions, criminalization of PDMIs and other historical rather than their own homes. Thus, works in the field of psychiatry, sociology juridiciarization, as a relatively new concept, and law. In these multidisciplinary writings, speaks to the increasing ways in which this increase in the interaction between PDMIs come into contact with the judicial psychiatric and judicial power is linked to the system, both civil and criminal (Paradis- phenomenon of deinstitutionalization Gagné & Jacob, 2020; Centre for Addiction Corresponding Author : Etienne Paradis-Gagné Facutly of Nursing, Université de Montréal. Email: [email protected] 3 and Mental Health [CAMH], 2013; which often include various forms of Gouvernement du Québec, 2018; Peternelj- coercive intervention to which they Taylor, 2008; Provencher, 2010), reinforcing participate. In Canada and Ontario more both old and new forms of trans- specifically, the vast majority of psychiatric institutionalization. admissions are now involuntary (Lebenbaum, Chiu, Vigod, & Kurdyak, Of particular importance to this article, are 2018). A report of the Ombudsperson of the numerous issues often reported in relation British Columbia also highlights the to contemporary processes of judiciarization significant increase in involuntary psychiatric in the context of the psychiatric-judicial hospitalizations in recent years in the interface (Schneider, 2015). Among these province (Office of the Ombudsperson, issues is the fact that judiciarization 2019), a situation also considered to be of disproportionately affects so-called concern in the province of Québec “vulnerable populations” (Commission des (Commissaire à la santé et au bien-être, droits de la personne et des droits de la 2012), and we would argue, across the nation jeunesse, 2009; Office of the Ombudsperson, as a whole. In forensic psychiatric nursing 2019), as well as indigenous and racialized more specifically, ongoing difficulties are populations (CAMH, 2013; Watts & experienced by nurses who are regularly Weinrath, 2017). Other reported issues in the confronted with dual roles of care and control literature include the increased stigma that in the context of their work (Hörberg & affects PDMIs (Frappier, Vigneault, & Dahlberg, 2015; Mason, 2002). The use of Paquet, 2009), and the detrimental effects coercion as an intervention in the context of judiciarization may have on families and care, thus requires ongoing reflection on the relatives (Beaudoin & Robert, 2012; Paradis- part of nurses so as to ensure ethical practice. Gagné, Holmes, & Perron, 2020). For example, having to involve the police in a It should be noted that coercion is a crisis situation, initiating legal proceedings to multifaceted concept (Pariseau-Legault, obtain a request for a psychiatric assessment, Vallée-Ouimet, Goulet, & Jacob, 2019). It or filing a complaint against a relative with can be defined as either formal, or “hard” severe mental disorder has serious (Andersson, Fathollahi, & Gustin, 2020), as consequences for the family (Paradis-Gagné well as informal, or “soft” (Valenti et al., et al., 2020). Recent studies also suggest that 2015). For example, formal coercion is often the judiciarization of vulnerable populations associate to the use of seclusion, mechanical is no more effective than care offered on a and chemical restraint, and involuntary voluntary basis (Kisely, Campbell & hospitalization. Informal coercion may O’Reilly, 2017) and can be include such things as persuasion, threats to counterproductive (Bello & Sylvestre, 2017). use harder forms of coercion, or undue pressure to comply with treatment Nurses are particularly affected by the (LeFrançois, 2014; Valenti et al., 2015). growing interaction between the psychiatric Although soft coercion may not be explicit or and judicial interface (Galon & Wineman, as tangible, it nevertheless enables its 2010; Gournay, 2005; Kent-Wilkinson, 2010; application to a wide range of people (e.g., Mason & Mercer, 1996). As clinicians within people who are voluntarily hospitalized or this interface, they are present throughout the cared for), and may be just as harmful, continuum of care, from street nursing, to (re)traumatising, and oppressive for those emergency room admissions, inpatient who are subjected to it (Allison & Flemming, treatment and community follow-up—all of 2019; Nyttingnes, Ruud, & Rugkåsa, 2016). WITNESS VOL. 2(2) 4 social control in psychiatric settings, as well This article aims to provide a discourse as the various forms of power (whether analysis of the phenomenon of judiciarization sovereign, disciplinary or pastoral) that are of PDMIs and its impact on nursing practice. orchestrated in these environments (Elden, Inspired by the work of Michel Foucault, our 2017). Foucault also studied the way certain analysis pays a particular attention to power social objects, situations and phenomena relations inherent to the process at play in (e.g., madness and criminality) historically interacting with the judicial system—or what become problems to be investigated and Foucault defined as the “psychiatric-judicial treated (Foucault, 2009). This notion of apparatus.” According to Foucault (2003), “problematization of knowledge” (Cheek, this apparatus dates from long before the 1999) is particularly useful for discourse period of deinstitutionalization, as far back as analysis. the mid 19th century. He contends that during this period, we witnessed a markedly For Foucault, discourses (or discursive intensified interaction between the practices) come to legitimize certain psychiatric and judicial systems which, knowledge (savoirs and connaissances), arguably, continues today and has become certain disciplines (law, medicine, distinctly important in recent times (Mason psychiatry, nursing, etc.) and certain modes and Mercer, 1996; Rogers & Pilgrim, 2014). of thought as historically located hegemonic With this in mind, we aim to describe and truths (Foucault, 1980). In other words, we critique how caring practices intersect with can think of discourses as “regimes of truth” the judicial interface, and how they that creates a hierarchy between knowledges contribute to legitimize the judiciarization of and that shape relations to self, others and the PDMIs. world (Foucault, 1980, 2010). Dominant discourses come to implement different Theoretical Framework mechanisms of power (be it sovereign, disciplinary, pastoral, etc.) in order to allow Engaging in a Foucauldian discourse analysis the subjection of people in society. requires, in part, the methodological approach to be framed in poststructural Methodology thought (Arribas-Ayllon & Walkerdine, 2017; Cheek, 1999). Poststructuralism is a In this article, we used the form of philosophical perspective that focuses on Foucauldian discourse analysis (FDA) both the analysis of the exercise of power in proposed by Parker (2013) as our society as well as a deconstruction of methodology. The approach proposed by dominant discourses at play in relation to the Parker, which is grounded in Foucault’s work phenomenon under study (Williams, 2005). and epistemology, is intended to guide the Such theoretical framework enables critique and questioning of dominant researchers to pay particular attention the discourses in the health sciences and nursing: ethical and socio-political