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.
Carpenter B, Tait G, Stobbs N, & Barnes, M, When coroners care too much: Therapeutic jurisprudence and suicide findings. (2015) 24(3) Journal of Judicial Administration 172.
Curnow K and Toohey L, ‘A Focus on Process: Procedures to Address Disputes About End of Life Decisions’ (2013) 24 Australasian Dispute Resolution Journal 45.
Evans A, 'Life and Death Matters' (2008) 82(12) Law Institute Journal 76.
Freckelton I, 'Death Investigation, the Coroner and Therapeutic Jurisprudence' (2007) 15 Journal of Law and Medicine 242.
King MS, 'Non-Adversarial Justice and the Coroner's Court: A Proposed Therapeutic, Restorative, Problem-Solving Model' (2008) 16 Journal of Law and Medicine 442.