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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 . 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 , 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).

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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 , 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 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 dimensions of the “This form of discourse analysis is always phenomenon under study (Williams, 2005). searching for points of conflict, something more visceral and subversive than mere Foucault is one of the central authors of methodological concern with poststructuralism, although he has always ‘contradiction.’” (Parker, 2013, p. 232). In rejected the labelling and categorization of this regard, it is important to note that the his ideas (Cheek, 1999). He has been FDA is not a formalized approach with strict particularly interested in care practices and procedures and prescribed outcomes. As

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stated by Arribas-Ayllon and Walkerdine proceeded to a grey literature search (n=10 (2008): “there are no set rules or procedures documents) on the phenomenon under study for conducting Foucauldian-inspired (e.g., governmental reports from different analyses of discourse.” (p. 110) Canadian provinces, documents produced by mental health advocacy groups) in order to Foucauldian discourse analysis refers to a contextualize the scientific literature to the critical re-reading of how knowledge takes Canadian context. In hindsight, the grey shape, are deployed and become accepted as literature proved to be an important part of criteria of truth in contemporary societies the process, as it allowed us to explore what (Parker, 2013). From Foucault’s perspective, Foucault has defined as marginal knowledges discourse analysis can thus be (Foucault, 1980); that is, aspects of the operationalized in different analytical stages: concepts that would have otherwise been left out of the review process. Lastly, we 1. To treat discourse not as a theme consulted the references in all publications to of reviving commentary, but as a find other relevant sources (n=15) for monument to be described in its analysis. intrinsic configuration. 2. To investigate not the laws of Once all publications were sourced, the construction of discourse, as it is content of the papers were analyzed done by those who use structural following steps inspired by Parker (2013) on methods, but its conditions of FDA. The following are examples of existence. 3. To relate the discourse questions that were asked of the literature not to a thought, mind or consulted during the analytical process: How which engendered it, but to the is the concept of judiciarization and those practical field in which it is deployed. related to it mobilized in the text? What are (Foucault, 1991, p. 61) the central ideas that stand out in this text? Are there reported power dynamic and social We proceeded with our Foucauldian control issues? Is there the presence of discourse analysis (FDA) by first conducting dominant discourses, of “regime of truth” a literature review following the iterative that are conveyed in the text? What are the steps proposed by Paré and Kitisou (2017): conditions of existence of those discourses? formulating the aim of the research; What is not in the text, or what is left in the searching the literature; screening for margin? inclusion criteria; extracting data, and This process enabled us to tease out the ways analysis of the data. For searching the in which we currently think about the literature, we used a combination of phenomenon of judiciarization in the context keywords (criminal justice, judiciarization, of mental health, to then analyze these ways criminalization, procedural justice, mental of thinking in light of inherent socio- health and mental disorder), using different political/power dynamics that constitute databases: CINAHL, MEDLINE, PsycINFO them. and Érudit. A total of 1359 articles were sourced. We selected English and French Findings language, international peer-reviewed articles (n=22) that both presented the The analysis of the literature reviewed led to concepts in the abstract or title, and addressed the identification of three elements of the it in the context of mental health nursing (or psychiatric-judicial apparatus. These related health care context). We then elements are taken up in three main

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categories which are detailed below: 1) the and be done in different ways. The following construction of the judiciarized subject; 2) the section speaks to these various forms and instrumentalization of care as a strategy of ways PDMIs come into contact with the control and 3) procedural justice as an judicial system and their effects. It also extension of pastoral power. speaks to some of the conditions that enable judiciarization of PDMIs more generally; that The Construction of the Judiciarized is, the conditions that permit judiciarization Subject of PDMIs to exist.

Sociocultural geographer Robin Kearns According to our review of the literature, (1993) writes: “[…] what occurs in a place (in judiciarization of PDMIs can occur in three terms of the relations between people and distinct yet interrelated ways, positioning it elements of their environment) has a on a continuum of experiences raging from profound importance to health” (p. 141). criminalization, to everyday contacts with What we can draw from this quote is the members of the justice system (e.g., police inherent contextual nature of health officers). In criminal matters, judiciarization experiences and the need to take into may take place after a PDMI has committed consideration how relations with our an offence that may result in incarceration. In environment deeply affect us. this regard, Schneider (2015) reports that persons diagnosed as mentally ill are over- Shifting our thinking and focusing on the represented in the Canadian correctional dialectical relationship between the elements system, although it is an environment where that make up our environment (material, it can be difficult to provide appropriate symbolic, human, etc.) and subjective mental health care (Dvoskin et al., 2020; experiences, enables us to look into how we Frappier et al., 2009; Protecteur du citoyen, come to understand ourselves and others 2011). Justice system involvement may also (Poland, Lehoux, Holmes, & Andrews, result in hospitalization in a forensic 2005). If we look at PDMIs, such a focus psychiatric setting for individuals found not forces us to think about implicit and explicit criminally responsible on account of mental relations of power that come to define how disorder (Schneider, 2015). In this instance, they are discursively constructed—taking PDMIs are not criminalized per se, but are into account those interrelated elements that nevertheless integrated to the judicial system surround them (material, social, symbolic, through hybrid medico-legal processes. discursive, etc.) and come to define them. More specifically, we need to look at the Lastly, judiciarization may not ways in which PDMIs come into contact with necessarily lead to a form of the judicial system and become judiciarized imprisonment/hospitalization, but also refers subjects; that is, how they come to be known to the multiple points of contact PDMIs may and constructed from a judicial lens. Such a have with members of the justice systems in focus supposes that we break from traditional more or less formal ways. For instance, in the frames of reference where PDMIs are literature, interactions with police officers, as subjected to the medical gaze or judicial first responders to public disturbances or structures, and that we take into consideration emergencies, are often reported (Kucirka & the emergence of a justice that is now Ramirez, 2019; Lamb & Weinberger, 2013), described by its therapeutic nature (Foucault, and contribute to the construction of PDMIs 2003). How PDMI come to be placed on a as judiciarized subjects. In these instances, judicial trajectory can take on various forms PDMIs’ contact with social assistance

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services is done through a judicial interface According to Deleuze (1992), contemporary (as opposed to medical), which includes societies of control (societies that coexist documentation of their behaviours, record with the disciplinary ones) allow for keeping of interactions, as well as associated increased surveillance/discipline while methods of management. Although it may concurrently portraying or alluding to seem benign, these forms of interaction and increased autonomy and freedom (O’Byrne associated documentation and management & Jacob, 2019). A good example of form a repertoire through which we come to Deleuzian control mechanisms is the see, understand, and intervene in the context judiciarization of PDMIs achieved through of mental health; a specific set of relations civil mental health legislation, the workings that enable judiciarization of PDMIs. of which may vary across provinces (Gray, Hastings, Love, & O’Reilly, 2016). Civil In light of the context described above, and in court provisions can include community order to avoid involving PDMIs in the treatment orders (CTO), involuntary criminal justice system, various diversion hospitalization and inpatient treatment mechanisms have been put in place in Canada authorization (Gray et al., 2016; O’Reilly, (Schneider, 2015). We argue, however, that Keegan, Corring, Shrikhande, & Natarajan, despite its intentions of “diversion”, such 2006). Although civil mental health mechanisms work to expand current legislations may be considered less adverse judiciarization mechanisms. Examples than the criminal justice system by enabling include specialized mental health courts a certain level of freedom, autonomy and/or (MHC), which allow for diversion from the management in a health care facility, they criminal justice system to treatment in the still remain oriented towards social control community (Kopelovich, Yanos, Pratt, & and coercion through the management of Koerner, 2013). These specialized courts conduct on a much larger scale; that is, were developed in the 1980s and are now through a growing number of institutions, established in different provinces community networks, etc. (Association des (MacDonald, Bellot, Sylvestre, Michaud, & groupes d’intervention en défense des droits Pelletier, 2014; Watts & Weinrath, 2017). If en santé mentale du Québec [AGIDD-SMQ], these mechanisms are considered to meet 2014; Gault, 2009; Nyttingnes et al., 2016). therapeutic ends, they nonetheless create new For nursing practice, this doesn’t mean that spaces of surveillance and control outside the traditional disciplinary interventions walls of traditional institutions such as (working with the individual to change prisons, hospitals, etc. behaviours) are no longer in place. On the contrary, in societies of control, nurses do These are the societies of control, take part in these interventions while which are in the process of replacing concurrently working on the conditions in the disciplinary societies. […] For which PDMIs live. This move away from example, in the crisis of the hospital disciplines allows for a type of control that as environment of enclosure, permit/limit certain actions to take place, neighborhood clinics, hospices, and while fostering a sense of autonomy and day care could at first express new concurrently maintaining a strategic gaze and freedom, but they could participate as possibilities for interventions. There is much well in mechanisms of control that to unpack here with respect to the role of are equal to the harshest of psychiatric power in current societies and confinements. (Deleuze, 1992, p. 4) how this role is ultimately contributing to current processes of judiciarization.

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2013; Gouvernment du Québec, 2018; On the notion of freedom and autonomy, the Marshal & Adams, 2018). Such work of French philosopher Michel Foucault stigmatization can create fear among care reminds us that mental health legislations and providers of people who are judiciarized; that judicial processes constitute neither a is, people who have come into contact with guarantee of freedom nor the protection of the law, have a judicial background and come autonomy. On the contrary, judicial to be reduced to such labels—a reality that is processes must be understood as mechanisms likely to complicate access to health care through which power operates, contributing services (Frappier et al., 2009). On this to the construction of obedient/disciplined subject, Marshall and Adams (2018) also patients in increasingly diverse and subtle indicate that this double stigma (mental ways (Roberts, 2005). In the context of illness and criminality) can have an impact on limited health services, the justice system the quality of the therapeutic relationship represents an “institutional crystallization” of between health care providers and power relationships (Foucault, 1978, p. 93) judiciarized patients. and becomes a lever (Crocker et al., 2015; MacDonald et al., 2014; Redlich, Steadman, Added to this double stigma is the reality of Robbins, & Swanson, 2006), a “system of systemic racism. There is evidence that capture” for the mental health care system to racialized and Indigenous peoples are over- take shape and operate in new and unfamiliar represented in involuntary mental health ways. Such process is experienced by some services as well as in the criminal justice “as if [one] was in prison but outside” (Gibbs, system in Canada (CAMH, 2013; Meerai, 2010, p. 228). This metaphor illustrates the Abdillahi, & Poole, 2016; Watts & Weinrath, symbolic force of the judiciarization of 2017). For instance, this form of mental illness as well as the disciplinary logic discrimination particularly affects Black that can be inferred from it. people, who are victims of a phenomenon defined by Meerai et al. (2016) as anti-Black Different concerns are highlighted in the sanism, i.e. “an oppression, a belief system, literature on the increased use of the justice and the pervasive form of violence that systems to deal with PDMIs. First, is the risk makes it possible for psychiatric diagnosis, of increased psychiatrization (or medication, and other ‘therapeutics’ to strip “pathologization”) of social problems away dignity and livelihood” (p. 21). From a (AGIDD-SMQ, 2014; Comité Vigilance, discursive standpoint, we can ask ourselves 2011, Rogers & Pilgrim, 2014), which is what “new” forms of are we what sociologists Castel, Castel and Lovell dealing with if imprisonment has become the (1979) defined as the “psychiatrization of way marginalized and racialized populations difference”. In the same vein, the primary are being managed? How can we understand emphasis on adherence to judiciarization of PDMIs in a society that psychopharmacological treatment as the otherwise put so much emphasis on privileged form of intervention by psychiatric individual liberties, free markets, and the authorities is also heavily criticized (Comité need to limit the power of “the state”? Vigilance, 2011; Provencher, 2010; Watts & Evidently, the articles sourced for this paper Weinrath, 2017). fall short to help answer such questions but do set the stage for ongoing attention and Second, double stigmatization in the context problematization on the phenomenon of of justice system involvement is another judiciarization. problem that is frequently raised (CAMH,

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The Instrumentalization of Care as a expansion of the social field of psychiatry Strategy of Control and justice, based on Deleuzian mechanisms of social control—ever increasing the grasp The ways in which PDMIs are managed over individuals in complex networks of within the justice system are primarily carried power relations (including health care). out with a view to protecting the public Several authors have argued that nurses who (Peternelj-Taylor, 2008; Schneider, 2015). practise in forensic psychiatric contexts take This emphasis on safety and public protection part in coercive interventions as agents of may, however, come in contradiction with the social control, leading to significant role philosophies of care and recovery advocated ambiguity (Gournay, 2005; Hörberg & in clinical settings and in the nursing Dahlberg, 2015; Holmes, 2002; Jacob, 2012, discipline (e.g., autonomy, empowerment, 2014). This is a reality that is also present in self-determination and individualized care). general psychiatric settings, as well as in As Gault (2009) states: “Mental health care is community care (Galon & Wineman, 2010; subject to continuous debate over the tension Gault, 2009; Jager & Perron, 2018). The between caring for those with mental health preliminary results of a recent study problems and protecting the public.” (p. 204) conducted by the authors suggest that this This dichotomy can create ethical and moral instrumentalization of care comes to tensions for nurses working with patients construct coercion, which very often results involved in the justice system, as polarizing from the judiciarization of PDMIs, as a discourses of care and control (discipline) are “necessary evil” (Andersson et al., 2020; at the forefront of many interventions Pariseau-Legault et al., 2019). (Mason, 2002). Procedural Justice as an Extension of As such, forensic-psychiatric nurses act from Pastoral Power both a therapeutic and social control perspective (Jacob, 2012, 2014; Mason, In response to these dilemmas between the 2002). In carrying out daily interventions, notions of care and control inherent to the they equally engage in therapeutic acts as psychiatric structures, some authors have well as various mechanisms of “soft” recently raised the importance of introducing coercion (forced medication, constant a procedural justice approach in both clinical surveillance and mandatory home care visits, and court settings: “the principles of court appearance as expert witness, etc.). The procedural justice theory could be used to involvement of nursing as a caring and reconcile the tension between care and therapeutic profession is what seems to control” (Wittouk & Beken, 2019, p. 19). legitimize and “soften” the coercive acts This approach promotes what is considered a undertaken in such contexts. Inadvertently, more open and constructive process that there is a form of instrumentalization of listens to the patient being judiciarized in nursing interventions that no longer serve order to reduce the perception of coercion only therapeutic ends, but are strongly experienced in judicial processes (Galon & affected by power dynamics inherent in the Wineman, 2010; Kopelovich et al., 2013). management (according to psychiatric The implementation of this approach— expertise and discourses) of “deviant” and “at whose central values are equity, voice, risk” populations (Foucault, 2003). validation, transparency, inclusion and respect—would thus promote better According to sociologist Jacques Donzelot involvement of patients in the therapeutic (1979), we are now confronted with an relationship in context of judiciarization

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(Wittouck & Beken, 2019). As Maguire, justice, nurses and mental health Daffern and Martin (2014) argue, patients are professionals now have a role in more likely to accept coercion and mandatory accompanying patients through the legal treatment if they perceive that they are treated process—ensuring various forms of support with respect and empathy. In forensic for judiciarized persons, but also facilitating settings, the use of procedural justice has persuasion and supporting the overall process been presented as a way to enhance patient of legal proceedings. Once again, Foucault’s autonomy, while promoting more positive work is particularly evocative with respect to and harmonious relationships and expert discourses and the role mental health interactions with care providers (Livingston, professionals are asked to play in the judicial Crocker, Nicholls, & Seto, 2016; Maguire et system: “The sordid business of punishing is al., 2014). In keeping with our critique of the thus converted into the fine profession of instrumentalization of care as an extension of curing. As well as serving other ends, expert social control, we wish to engage with the psychiatric opinion serves to effect this relatively uncritical approach with which the conversion” (Foucault, 2003, p. 23). concept of procedural justice is being portrayed and adopted. According to our analysis, principles of procedural justice can be conceptualized as In the philosophical foundations of the introduction of pastoral forms of power in procedural justice, the court no longer has legal proceeding as they related to mental unique roles of punishment and sanction, but health cases. Pastoral power may be also a role of therapy and support (Canada & understood as a secular power (Tierney, Hiday, 2014; Kopelovich et al., 2013). These 2004) that refers to practices of subjection differing mandates required of the court— (i.e., the government of self). This form of now simultaneously called on to judge and power is presented as follows by Wilson, treat—would appear to be in opposition. Crowe, Scott and Lacey (2018): “exemplified According to Castel et al. (1979), the historically in the Christian clergy, the notion appropriation of this therapeutic mandate by of the ‘pastoral’ creates an image of the the judicial domain leads to “a confusion or a pastor who acts as shepherd in charge of a near-total lack of differentiation between flock” (p. 355). In its practical form, pastoral justice and psychiatry” (p. 238). In effect, the power is implemented through the techniques establishment of specialized mental health of examination of conscience and confession courts has raised many questions for patients’ (the Christian confessional principle), and rights organizations (Comité Vigilance, can thus be considered as “the general 2011; Provencher, 2010), and we would operation of the examination, analysis, argue, contributes to the conditions that correction, and guidance of the penitent” permits judiciarization to take place. (Foucault, 2003, p. 180). The exercise of this form of power allows the development of a Among other things, we are witnessing the relationship of subjection; it is therefore a hybridization of roles and language. On the power that invites acceptance and obedience one hand, the courts are increasingly trying to on the part of the person being governed by embody clinical—read therapeutic— someone who they trust. principles and processes, and on the other Foucault informs us that this pastoral power hand, health professionals are increasingly is still in use in contemporary societies, adhering to and mastering legal jargon, a particularly within the psychiatric-judicial concept defined as “legalism” by Rogers and apparatus (Foucault, 2003). With the exercise Pilgrim (2014). In addition, with procedural of such power (which can operate in parallel

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with disciplinary and sovereign forms of In this respect, pastoral power makes it power), PDMIs come to accept the need for possible to reduce the perception of coercion some form of coercion against them. The aim and injustice among patients in judicial is therefore to make these people understand proceedings. Nevertheless, these clinical that this coercion, whether formal or practices expected of mental health nurses informal, is applied for their own good and and clinicians (e.g., active listening, for the protection of the public. explanation of the need to use the justice system, transparency, guidance and From a neoliberal standpoint, we see the persuasion) remain rooted in a logic of social construction of a responsible subject, one that control and subjection that is carried out is rational, and acts in the interest of health towards “difficult”, “dangerous” and and the safety of all (Esposito & Perez, 2014). “abnormal” individuals (Foucault, 2003; As Foucault would argue, the goal of such a Roberts, 2005; Rogers & Pilgrim, 2014). Our process is the production of docility, for the analysis makes it possible to shed light on the patient to be “perfectly aware of his dynamics of power (pastoral, disciplinary and condition; […] he demands the chains sovereign), control and subjection that persist himself and, perhaps, his confinement.” in clinical settings, and which are (Foucault, 2003, p. 144). In practice, it is promulgated through apparently humanistic nurses who exercise pastoral power in the and neutral discourses (Foucault & Chomsky, context of their clinical functions (Holmes, 2006). Consequently, there is a need to 2002; Wilson et al., 2018). Through the maintain a critical distance with respect to the therapeutic relationship they build with very function of procedural justice. patients and within their new-found role in processes of procedural justice, they promote Recommendations Stemming From the their patients’ acceptance of coercion within Literature the confines of psychiatric treatment and legal mechanisms (e.g., CTO, involuntary We have seen so far that justice system hospitalization, MHC, etc.). The involvement of PDMIs is complex and can individualizing force of such a role is not generate effects on both patients who may limited to passive observation or the experience various forms of coercion, and application of technical procedures, as it is nurses whose professional roles come to be often suggested in the literature (Slemon, blurred with processes of social control. Jenkins, & Bungay, 2017; Stevenson & Various recommendations are proposed in Cutcliffe, 2006). It is also part of an active the literature to reduce or even prevent and relational process. The people being PDMIs’ contact with the judicial system. One cared for attribute legitimacy to nurses due to of the most cited recommendation is better the benevolent nature of their professional access to mental health services in the practice and role in therapeutic interventions. community (Gouvernement du Québec, In conceptualizing nursing work in the 2018; Lamb & Weinberger, 2013), context of procedural justice enables us to particularly in the context of forensic make explicit operations of pastoral power as psychiatric services (Peternelj-Taylor, 2008). it not only opens up a form of confession that This includes the need for increased access to allows clinicians to access the subject’s supportive housing where there is access to “truth”, but also participate in the specialized mental health teams (CAMH, modification of his or her own conscience 2013; Lamb & Weinberger, 2013). and conduct (Tierney, 2004).

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With regard to the justice system, it is Final Remarks recommended to avoid the criminalization of In this article, we sought to provide a incivilities and minor offences where reflexive and theoretical perspective on the possible for people with mental disorders phenomenon of the judiciarization of PDMI. (Gouvernment du Québec, 2018). There is Our analysis was inspired by the work of also a call for better support for PDMIs French philosopher Michel Foucault and the dealing with the justice system in order to results generated can be used to better avoid imprisonment and criminalization— understand the power relationships that exist such as proper legal representation in the context of nursing care within the (Gouvernment du Québec, 2018). Finally, it psychiatric-judicial apparatus—namely is recommended that in court and/or exploring the construction of the judiciarized detention settings, PDMIs should be provided subject, problematizing the with access to specialized mental health care instrumentalization of nursing care, as well as sooner (Kucirka & Ramirez, 2019; Protecteur the role nurses play in providing care and du citoyen, 2011). ensuring social control. By employing Foucault’s work in our analysis, we come to However, these proposed recommendations conceptualize the psychiatric-judicial stemming from the literature do not fix the apparatus, as a disciplinary , as part complex power dynamics at play, or the of a society of control, within which nurses discursive tensions between competing play integral functional and relational roles. ethical, political and social imperatives Nurses who practise within this psychiatric- inherent in the management of “risky” and judicial apparatus must be conscious of their “abnormal” populations (Foucault, 2003). On participation in such mechanisms, so as to the one hand, promoting better access to engage with the professional tensions they mental health services in the community is create. If anything, the results of our analysis likely to individualize the structural causes of highlight the need to stimulate discussion and vulnerability, such as racism and critical reflection among nurses and all health socioeconomic precariousness, and in some professionals concerning the judiciarization cases, contribute to the expansion of the of PDMIs. We hope that this theoretical psychiatric-judicial apparatus. On the other contribution will raise awareness of the hand, the emphasis placed on specialized existence of normative practices and psychiatric care in order to avoid discourses in health care settings and in judiciarization is likely to legitimize the nursing, too often taken for granted as good discourse of psychiatric “expertise”, which, it and well intentioned. should be remembered, contributes to the stigmatization and control of PDMIs. Indeed, Ethical permission several of these recommendations only reinforce existing power relations. No ethical approval was required for this Challenging structural inequities and being article as it is a theoretical work that is not vigilant with regard to the discourse of based on empirical research. psychiatric expertise, particularly with regard to the management of the “risks” posed by PDMIs, remain appropriate courses of action based on the principles of advocacy and social justice.

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