One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). Initially employed in cases involving individuals with mental disabilities, but subsequently expanded far beyond that narrow area, therapeutic jurisprudence presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law can have therapeutic or antitherapeutic consequences. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This chapter considers the potential impact of TJ on the relationship between international human rights principles and mental disability law developments, a consideration significantly premised on the belief that applying therapeutic jurisprudence can assist both lawyers and mental health professionals in addressing and resolving human rights issues. The chapter considers the TJ/international human rights intersection in the context of the forensic mental health system, focusing specifically on the role of forensic mental health professionals. It looks at that intersection in the context of some of the issues that which has been the focus of work (specifically, the use of state-sanctioned psychiatry as a tool of suppression of political dissent, the “universal factors,” the need for dedicated counsel, the enforcement of the CRPD, and the creation of a Disability Rights Tribunal for Asia and the Pacific), and concludes with some recommendations for future action.
Keywords: therapeutic jurisprudence, mental disability law, international human rights law, Convention on the Rights of Persons with Disabilities, Disability Rights Tribunal for Asia and the Pacific, universal factors
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