Why Have Hearings for Kids if You're Not Going to Listen?: A Therapeutic Jurisprudence Approach to Mental Disability Proceedings for Minors

Abstract

This article explores the therapeutic jurisprudence (TJ) implications of civil commitment or other mental disability proceedings involving children. Its primary focus is due process hearings provided to review the appropriateness of minors' hospitalization in public or private mental health facilities. Providing such due process protections including legal counsel for children has been criticized as counter-therapeutic, reinforcing the child's denial of mental disability and increasing conflict with parents and therapists. Advocates for minors' civil rights have replied that due process hearings for minors are required to prevent inappropriate hospitalization and promote accurate evaluation and treatment in the least restrictive setting. This paper will analyze from a TJ perspective one state's attempt to balance the interests of parent, child, and state by providing independent clinical review hearings and legal representation for minors committed to private mental health facilities. After a brief overview of the case law and policy background establishing due process rights for minors in the civil commitment context, the article reviews the literature on the therapeutic possibilities of civil commitment proceedings, summarizing key concerns. Using a hypothetical due process hearing, the article identifies ways in which the existing procedures are counter-therapeutic. Finally, the article recommends ways of improving the therapeutic potential of mental disability proceedings for minors.