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Schopp & Wexler in Journal of Psychiatry & Law (Summer 1989) 17. Copyright 1990, Federal Legal Publications. Used by permission.


Professional organizations sometimes promulgate guidelines intended to inform their members' practice. These standards may be designed to guide practitioners under ordinary conditions, or they may define an ideal toward which to strive. If courts adopt idealized standards as criteria of responsible practice for the purpose of establishing tort liability, professional organizations might respond by refraining from developing such guidelines or by framing them with an eye toward preventing liability rather than strictly for the purpose of enhancing patient care. In either case, the courts' actions and the organizations' responses might hinder, rather than enhance, the therapeutic project of the mental health system.

Therapeutic jurisprudence is an approach to the study of mental health law that investigates the effects of the law on the therapeutic project of the mental health system and considers ways in which the law might be designed in order to promote that project without sacrificing other important values. One important item on this agenda is the study of various ways in which legal rules, procedures, or roles may actively impair the functioning of the mental health system. This paper considers one aspect of tort law that may undermine both the therapeutic project of the mental health system and the legal goals that the law is designed to promote.

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