4. Wellbeing

4.1 Civil and Administrative Law

A lack of wellbeing is often a key reason why people are involved in civil litigation or are required to appear before a tribunal. Personal injury due to workplace accident, motor vehicle accident or other negligent or intentional act is one example. However, the lack of wellbeing may not be physical with any attendant psychological problems or purely psychological in nature. There may be dysfunction in relationships as in disputes between neighbours, families fighting over a deceased’s estate or in commercial or contractual disputes between individuals or corporations. In the case of disciplinary tribunals, a professional may be alleged to have been neglectful in some aspect of his or her professional duty giving rise to some form of harm to a patient or client. The very cause of the alleged neglect may be a lack of wellbeing on the part of the professional.

Does the legislative framework for resolving disputes take into account the potential dysfunction that parties may experience? Do court and tribunal processes and the approach of lawyers promote their resolution, aggravate them or leave them unresolved? Do they promote therapeutic principles such as voice, validation, respect and self-determination? What can lawyers do to minimise negative effects of legal processes on client wellbeing? Are there alternatives to litigation? Can therapeutic judging processes be used in civil law proceedings?. These are some of the areas explored by therapeutic jurisprudence in the area of civil and administrative law.

4.2 Victims

Therapeutic jurisprudence examines the impact of legal processes on all participants in the justice system whether they be victims and their families, offender, litigant, witness, juror, lawyer, court officer or judicial officer. It does not side with any particular group. It is interested in the effect of courts and other legal processes on all those involved in them.

It has been increasingly recognised by the justice system that victims come to court with special needs. They often have suffered significant trauma from the incident that gave rise to the legal proceedings and often with a substantial impact on diverse areas of their lives. Particularly where the perpetrator and victim are or had been in a relationship, the resolution of the problems may require them to be involved in multiple legal proceedings – criminal, family and/or restraining order/apprehended violence order proceedings. The resolution of the legal ramifications of the incident that caused the trauma often involves negotiating a system that can feel alien and alienating. Victims are often at risk of secondary traumatisation at the hands of the legal process.

In recent decades, the justice system has sought to be more responsive to the needs of victims. It has developed a special system of courts to promote the protection of and support for a particular category of victims – victims of family violence. It has introduced victim impact statements and victim offender mediation processes. There are also victim support services available at many courts. Specialised services to support victims of family violence have been established in many areas.

Some jurisdictions have introduced legislation to provide for particularly vulnerable witnesses such as children to give their evidence via closed circuit television from a remote room. There has also been legislation in some jurisdictions to limit cross-examination that in the large majority of cases is more intimidating for victims than of evidentiary value to the court – for example, limitations as to cross-examination as to past sexual conduct of victims.

How do legal processes impact upon the wellbeing of victims? How far do they promote victim voice, validation and respect? Do the initiatives introduced to assist victims promote or inhibit their wellbeing? What more can be done in the justice system to reduce negative impact of legal processes and to promote more positive effects? Are there other justice system values to be considered in introducing new initiatives? These are areas of inquiry of therapeutic jurisprudence.

4.3 Death-Related Issues

Legal decisions and processes leading up to and following death raise significant issues relating to the wellbeing of those involved or otherwise affected by them. An emerging body of therapeutic jurisprudence scholarship examines these issues. Below are some examples of where therapeutic jurisprudence has application in death-related issues.

How a Will is expressed and how property is to be distributed from a deceased’s estate may affect the wellbeing of family members and other beneficiaries. A lack of attention to wellbeing issues may be a source of bitter and protracted litigation concerning the will following the testator’s death. Where there has been dissatisfaction concerning a Will, there may be a challenge as to the Will’s validity or an application made under inheritance legislation for proper provisions to be made for the support of a person out of the deceased’s estate. How lawyers and courts act in relation to such applications and whether there may be more therapeutic means of addressing such issues is an area of inquiry of therapeutic jurisprudence.

For the terminally ill, there may be decisions concerning the continuation of medical treatment, their affect on family and the ill person and how the law should handle such cases.

Suicide also raises significant and often difficult and challenging issues concerning wellbeing, ethics and the law. Of particular note is  assisted suicide – whether by physician, close family member or friend.  How should the law react? If the criminal law is used, what penalty is appropriate on conviction? What effect does criminalisation have on the wellbeing of the parties involved? Another example is the issue of the ethical and therapeutic approach a lawyer should take if a client informs the lawyer of her or his intention to commit suicide.

The coronial court system is a rich source of issues concerning the wellbeing of the family of the deceased, people who may be the subject of adverse comments by a coroner and wider networks such as fellow employees of the deceased. The processes coroner’s courts use in inquiring into suspicious deaths can have a significant effect on the wellbeing of those affected.

4.4 Family Breakdown and Child Welfare

Family dysfunction significantly affects individual family members, often causing psychological issues, relationship and financial problems and conflict concerning the care of and contact with their children. The law has traditionally assigned legal problems arising from family conflict into traditional categories of family, civil or criminal law and determined that they be resolved in courts having jurisdiction in that area. Often this means that one family may find themselves in a family court in relation to financial, child residence and contact issues and a civil or criminal court in relation to restraining orders or apprehended violence orders. Some family problems ‘ eg, disputes over a Will ‘ may be dealt with in civil.

The legal resolution of family conflict or issues to do with child welfare due to inadequate parenting have been in the adversarial context of litigation. However, both the legal and wider communities are increasingly aware that an adversarial approach to resolving family conflict can often aggravate rather than entirely resolving that conflict thereby perpetuating the family’s legal problems. Thus, family law has been the subject of significant reform in Australia since 1975, with a move towards less adversarial and more conciliatory methods of resolving conflict arising from relationship breakdown of married or de facto couples.

The Family Court of Australia and the Family Court of Western Australia have used a more therapeutic approach to resolving child issue cases particularly issues such as child abuse or violence in their Magellan and Columbus Projects respectively. Since the introduction of less adversarial processes into the Federal Circuit and Family Court of Australia from the Children’s Cases Pilot project in 2006, less adversarial trials have become an integral approach to resolving conflicts concerning child issues. Family lawyers have begun to explore the potential of more therapeutic approaches to their practice such as collaborative law. Supreme Courts are using mediation processes in relation to family disputes concerning Wills.

There has also been a small pilot project in Geraldton, Western Australia, influenced by US family drug courts, that has taken a therapeutic, problem-solving court style approach to care and protection applications.

Therapeutic jurisprudence in this area studies the impact of court and other legal processes on the wellbeing of family members and the family unit. It considers whether there are more therapeutic options consistent with other justice system values that must be considered in resolving family law and child welfare problems. This section examines the processes used by  judicial officers, lawyers and other justice system personnel  and offers suggestions for reform based on findings from the behavioural sciences.

4.5 Homelessness

Homeless people are overrepresented in the criminal justice system due to their offences being directly related to their experience of poverty.

Therapeutic Jurisprudence primarily concerns itself with the underlying issues causing this intersection between homeless people and the law. It attempts to find solutions in order to address these greater social barriers.

In Australia the NSW Drug Court and the Magistrates Early Referral into Treatment are some examples of Therapeutic Jurisprudence being applied into action. The Victorian Court systems, in particular, have implemented the “Special Circumstance List”. This program diverts homeless people with criminal sanctions back to social services in order to address their social and legal needs. Under this project it was reported that ‘homeless participants who had attended the Special Circumstances List had a positive experience with the court system as it allowed them to tell their story to the magistrate directly.

4.6 Corrections

Therapeutic jurisprudence examines the impact on wellbeing of a broad range of legal actors. In the criminal process, it ranges from the actions of police in investigating and prosecuting crime to the actions of corrections officers in relation to those who are imprisoned for criminal conduct, subject to parole or under supervision in the community.

From the 1990s onwards, corrections has been moving from a risk management approach based on a then widespread understanding that ‘nothing works’ in promoting offender rehabilitation to one that promotes offender rehabilitation while at the same time managing risk of offending. This move is based on research finding that certain rehabilitation programs ‘ particularly cognitive behavioural programs ‘ used for the right offenders in the appropriate context are effective in promoting decreased offender recidivism.

At the same time, more comprehensive models of offender rehabilitation are emerging such as the ‘good lives’ model which sees an essential aspect of rehabilitation as the promotion of a good life for individual offenders based on their motivations and needs through appropriate internal and external supports.

Parallels have also emerged between the correctional literature and that of therapeutic jurisprudence, particularly in the areas of motivation to change behaviour and the significance of concepts such as self-determination, voice, validation and respect.

Australian work in this area has been pioneering as can be seen in the references in the resources section. It has suggested how corrections officers can promote offender motivation to change and to engage in rehabilitation programs as well as how they can support offenders through the process. Research has also described an approach to correctional work that integrates therapeutic jurisprudence in increasing offenders responsivity to rehabilitation through the utilisation of good lives theory.

These developments are relevant to the work of judicial officers, lawyers and other legal system professionals it can, through a process of cross-fertilisation, contribute to the development of their work. Work in the application of therapeutic jurisprudence to corrections has already been discussed in the Australasian literature on therapeutic judging and problem-solving court programs.