Therapeutic jurisprudence: A framework for evidence-informed health care policymaking

International Journal of Law and Psychiatry

Volumn 33, Issue 5-6, 2010, Pages 281-292

  Campbell, Amy T ^a  

^a SUNY UPSTATE MEDICAL UNIVERSITY   (United States)

Author keywords

Evidence based health policy; Therapeutic jurisprudence

Indexed keywords

ARTICLE; BEHAVIOR; CLINICAL DECISION MAKING; CONCEPTUAL FRAMEWORK; COST EFFECTIVENESS ANALYSIS; EMOTIONAL DISORDER; EVIDENCE BASED PRACTICE; GOAL ATTAINMENT; GOVERNMENT; HEALTH CARE COST; HEALTH CARE MANAGEMENT; HEALTH CARE PERSONNEL; HEALTH CARE POLICY; HEALTH CARE PRACTICE; HEALTH CARE QUALITY; HEALTH CARE SYSTEM; HUMAN; JURISPRUDENCE; LAW; MASS SCREENING; MENTAL HEALTH; MENTAL HEALTH CARE; MENTAL STRESS; OUTCOME ASSESSMENT; RECOGNITION; STATISTICAL MODEL; SUICIDE;

ACHIEVEMENT; ADOLESCENT; CHILD; CHILD WELFARE; EVIDENCE-BASED PRACTICE; HEALTH PLAN IMPLEMENTATION; HEALTH POLICY; HUMANS; MASS SCREENING; MENTAL DISORDERS; POLICY MAKING; SCHOOL HEALTH SERVICES; UNITED STATES;

EID: 78649442372     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.ijlp.2010.09.001     Document Type: Article

References (110)

1. Bruce J. Winick, The jurisprudence of therapeutic jurisprudence, 3 Psychol., Pub. Pol., and L. 184 (1997).
2. This is a hypothetical example with made-up names and tools; however, the discussion draws on real-world examples and existing tools, evidence, and legislation.
3. Sean R. Tunis, Daniel B. Stryer & Carolyn M. Clancy, Practical clinical trials: increasing the value of clinical research for decision making in clinical and health policy, 290 JAMA 1624 (2003).
4. J.A. Muir Gray, Evidence based policy making, 329 BMJ 988 (2004).
5. Defining "evidence" and determining the quality of "evidence" raises its own host of concerns: What is an adequate "evidence base"? Who decides the needed quality/quantity of evidence? What of individualized needs and differences among populations? What of issues difficult to study empirically? These sorts of issues are beyond the scope of this paper, but are recognized as critical to ethical adoption of EBP, and the movement toward evidence-based health-policymaking. See Ian Sanderson, Is it 'what works' that matters? Evaluation and evidence-based policy-making, 18 Research Papers in Education 331 (2003)
6. Ian Sanderson, Evaluation, policy learning and evidence-based policy making, 80 Pub. Admin. 1 (2002)
7. Carol H. Weiss, What kind of evidence in evidence-based policy? 288-290 (July 2001) (unpublished manuscript presented at the Third International, Inter-disciplinary Evidence-Based Policies and Indicator Systems Conference), available at http://www.cemcentre.org/Documents/CEM%20Extra/EBE/EBE2001/P284-291%20Ca rol%20Weiss.pdf.
8. Anna Donald, Commentary: research must be taken seriously, 323 BMJ 278, 279 (2001).
9. Deborah J. Cook, Nancy L. Greengold, A. Gray Ellrodt & Scott R. Weingarten, The Relation between Systematic Reviews and Practice Guidelines, 127 Annals Internal Med. 210 (1997)
10. The Cochrane Collaboration, based in the UK, is a leading organization used to promote the use of evidence in health care. See http://www.cochrane.org/ (last visited Aug. 21, 2009)
11. More recently the Campbell Collaboration was also created to promote similar use in education and social welfare policy. See http://www.campbellcollaboration.org/ (last visited Aug. 21, 2009).
12. A comprehensive examination of the use of clinical guidelines and criticisms of such use (e.g., "cookbook medicine") is beyond the scope of this paper. For a fuller discussion, see Doris Grinspun, Tazim Virani & Irmajean Bajnok, Nursing best practice guidelines: The RNAO Project, 5 Hosp. Q. 56 (2001)
13. Edward J. Mullen & David L. Streiner, The evidence for and against evidence-based practice, 4 Brief Treatment Crisis Intervention 111 (2004). For a response to charges of inflexibility with manual-based treatments, see, e.g., Philip C. Kendall, Elizabeth Gosch, Jami M. Furr & Erica Sood, Flexibility within fidelity, 47J. Am. Acad. Child Adolescent Psychiatry 987 (2008).
14. For example, re: healthy eating/weight management, see National Collaborating Centre for Primary Care, Obesity: The Prevention, Identification, Assessment and Management of Overweight and Obesity in Adults and Children, Nat'l Inst. Health Clinical Excellence (2006).
15. See, e.g., U.S. Preventative Services Task Force, Screening for family and intimate partner violence: recommendation statement, 140 Ann. Internal Med. 382 (2004); Centers for Disease Control and Prevention, Preventing Lead Poisoning in Young Children, U.S. Dep't of Health and Hum. Services (2005); Identification of Common Mental Disorders and Management of Depression in Primary Care, N.Z. Guideline Group (2008) (international example).
16. R.C. Kessler, P. Berglund, O. Demler, R. Jin, & E. E. Walters, Life-Time prevalence and age-of-onset distribution of DSM-IV disorders in the national co-morbidity survey replication, 62 Archives of Gen. Psychiatry 593 (2005).
17. J.L. Rushton, M. Forcier & R.M. Schectman, Epidemiology of depressive symptoms in the national longitudinal study of adolescent health, 4 J. Am. Acad. Child Adolescent Psychiatry 199 (2002).
18. National Institute of Mental Health, Suicide in the U.S.: Statistics and Prevention(last visited July 30, 2009) (2009) available at http://nimh.nih.gov/health/publications/suicide-in-the-us-statistics-and -prevention/index.shtml.
19. Nat'l Scientific Council on the Developing Child, Mental Health Problems in Early Childhood Can Impair Learning and Behavior for Life (Center on the Developing Child at Harvard Univ., Working Paper No. 6, 2008)
20. Katja Weber, Brigitte Rockstroh, Jens Borgelt, Barbara Awisus, Tzvetan Popov, Klaus Hoffmann, Klaus Schonauer, Hans Watzl & Karl Pröpster, Stress load during childhood affects psychopathology in psychiatric patients, 8 BMC Psychiatry 63 (2008)
21. Bruce S. McEwen, Early life influences on life-long patterns of behavior and health, 9 Mental Retardation and Developmental Disabilities Res. Rev. 149, 149-154 (2003).
22. Elizabeth M. Ozer, Elaine G. Zahnd, Sally H. Adams, Sheila R. Husting, Charles J. Wibbelsman, Kim P. Norman & Susan M. Smiga, Are adolescents being screened for emotional distress in primary care? 44 J. Adolescent Health 520 (2009).
23. Ill. Child. Mental Health Partnership, Guidelines for School-Community Partnerships - Addressing the Unmet Mental Health Needs of School Age Children, 2007.
24. U.S. Preventive Services Task Force, Screening and treatment for major depressive disorder in children and adolescents: US Preventive Services Task Force Recommendation Statement, 123 Pediatrics 1223 (2009) (recommending screening of adolescents (ages 12-18) for major depressive disorder if systems in place for diagnosis and to offer follow-up services; note, evidence not supporting such for youth ages 7-11). A presidential commission also called for earlier intervention and prevention of mental health disorders through such screening practices. New Freedom Commission on Mental Health, Achieving the Promise: Transforming Mental Health Care in America. Final Report. DHHS Pub. No. SMA-03-3832. Rockville, MD: 2003 (Goal 4 specifically addressing early mental health screening and assessment, and discussing schools' role in mental health issue identification). Mental health screening of youth is not without controversy. Critics raise fears of mandatory screening and usurpation of parental rights, potential conflicts of interest among developers and promoters of screening, and lack of community resources to which to refer identified adolescents. See, e.g., Charles Q. Choi, National screening for mental health in teens inspires controversy, Scientific American, Jan. 23, 2007, available at, last visited Aug. 21 http://www.scientificamerican.com/article.cfm?id=national-screening-for- me (2009).
25. Andrea Sisko et al., Health spending projections through 2018: recession effects add uncertainty to the outlook, 28 Health Affairs w346, n.2
26. Kaiser Family Foundation, Trends in Health Care Costs and Spending (September 2007) available at, last visited July 30 http://www.kff.org/insurance/upload/7692.pdf (2009).
27. See Kaiser Family Foundation, supra note 19.
28. See Elliott Fisher, David Goodman, Jonathan Skinner & Kristen Bronner, Health Care Spending, Quality, and Outcomes: More Isn't Always Better, The Dartmouth Atlas, Feb. 27, 2009.
29. Longest defines health policies as "authoritative decisions made within government that are intended to direct or influence the actions, behaviors, or decisions of others pertaining to health and its determinants." They are how government "helps shape the pursuit of health by its members," be it via laws, regulations, rules, operational decisions, or judicial decisions and via an allocative or regulatory method. Beauford B. Longest, Health Policymaking in the United States, 30 (4th ed., Health Administration Press 2006).
30. Of course, non-health policies may also affect care. For example, consider a local county's transportation policy decision to end certain bus routes and raise prices: this may impact the ability of families without their own transportation to readily make appointments at a health system outside the urban core due to the greater time and cost in traveling. While also deserving attention, this paper will be limited to health care-specific policy proposals to maintain a narrower scope; however, the framework and discussion, infra, will also have relevance to other policy settings (e.g., education).
31. Jay Newton-Small, The Five Biggest Hurdles to Health-Care Reform, TIME Magazine, Jul. 27, 2009, available at, last visited Aug. 26http://www.time.com/time/politics/article/0,8599,1912920,00.html (2009)
32. Anne E. Kornblut, Obama to Take On Health-Care Critics, Wash. Post, Aug. 14, (last visited Aug. 26, 2009), 2009, available athttp://www.washingtonpost.com/wp-dyn/content/article/2009/08/13/AR2009 081301914.html
33. See also Robert H. Brook, The science of health care reform, 301 JAMA 2486, 2487 (2009) (offering recommendations for health reform that build on a science base and comparative effectiveness research to "determine whether what can be done less expensively will improve health or, at least, not harm patients").
34. See Children's Health Insurance Program Reauthorization Act of 2009, Pub. L. No. 111-3, 123 Stat. 8 (2009) (CHIPRA). CHIPRA, Title XXI of the Social Security Act and formerly known as the State Children's Health Insurance Program (SCHIP), was renewed and expanded by President Obama in February of 2009. CHIPRA is a "state and federal partnership that targets uninsured children and pregnant women in families with incomes too high to qualify for most state Medicaid programs, but often too low to afford private coverage. Within Federal guidelines, each State determines the design of its individual CHIPRA program, including eligibility parameters, benefit packages, payment levels for coverage, and administrative procedures. In addition to renewing the CHIPRA program, the new legislation makes it easier for certain groups to access CHIPRA health care, including uninsured children from families with higher incomes and uninsured low-income pregnant women." See, last visited June 25 http://www.cms.hhs.gov/LowCostHealthInsFamChild/ (2009).
35. Sanderson 2003, supra note 5, at 333.
36. History of the National Academies, available at, last visited June 25 http://www.nationalacademies.org/about/history.html (2009).
37. Sanderson 2003, supra note 5; see also Sanderson 2002, supra note 5; Steve Martin & Ian Sanderson, Evaluating public policy experiments: measuring outcomes, monitoring processes or managing pilots? 5 Evaluation 245 (1999).
38. Robert Schwartz & Bruce Rosen, The politics of evidence-based health policy-making, 24 Pub. Money & Mgmt. 121 (2004).
39. Brian W. Head, The lenses of evidence-based policy, 67 Austl. J. Pub. Admin. 1 (2008).
40. In 1993, President Clinton created the National Partnership for Reinventing Government (begun as the National Performance Review) whose mission was "to create a government that 'works better, costs less, and gets results Americans care about'." See, last visited June 25 http://govinfo.library.unt.edu/npr/whoweare/history2.html (2009).
41. On March 9, 2009, President Obama signed a Presidential Memorandum on scientific integrity, stating intent to "ensure that in this new Administration, we base our public policies on the soundest science;...that we are open and honest with the American people about the science behind our decisions." Signing of Stem Cell Executive Order and Scientific Integrity Presidential Memorandum, from Barack Obama, President, United States of America (March 9, 2009), available at (last visited Aug. 11)http://www.whitehouse.gov/the_press_office/remarks-of-the-president-a s-prepared-for-delivery-signing-of-stem-cell-executive-order-and-scienti fic-integrity-presidential-memorandum/2009
42. As stated by Peter Orszag, Director of the U.S. Office of Management and Budget:[I]n making new investments, the emphasis has to be on "smarter."...Wherever possible, we should design new initiatives to build rigorous data about what works and then act on evidence that emerges....By instilling a culture of learning into federal programs, we can build knowledge so that spending decisions are based not only on good intentions, but also on strong evidence that carefully targeted investments will produce results. Press Release, Peter R. Orszag, Director, Office of Management and Budget (June 8, 2009) (emphasis in original), available at (last visited Aug. 11http://www.whitehouse.gov/omb/blog/09/06/08/BuildingRigorousEvidenceto DrivePolicy/, 2009).
43. See Martin Rein, Value-Critical Policy Analysis 83-111, 88-90, in Ethics, the Social Sciences, and Policy Analysis (Daniel Callahan & Bruce Jennings eds., Plenum Press) (1983) (discussing the "value aspects of facts"); Julian Neylan, Social policy and the authority of evidence, 67 Austrail. J. Pub. Admin. 12 (2008) (discussing the historical evolution of reliance on statistical knowledge as evidence base for social policy)
44. Carol H. Weiss, The many meanings of research utilization, Pub. Admin. Rev., 426-431 (1979).
45. Shelley Bowen & Anthony B. Zwi, Pathways to "evidence-informed" policy and practice: a framework for action, 2 PLoS Med. e166, 0600 (2005).
46. Sandra Nutley, Huw Davies & Isabel Walter, Evidence-based policy and practice: cross-sector lessons from the United Kingdom, 20 Soc. Pol'y J. of N.Z. 29, 31 (June 2003) (explaining nature of evidence, and how in health care, hierarchy is preferred over "egalitarianism in sources of evidence").
47. Weiss, supra note 5, at 288-290.
48. Sandra Nutley & Jeff Webb, Evidence and the Policy Process, in What Works? Evidence-Based Policy and Practice in Public Services, 25-27 (Huw T.O. Davies, Sandra M. Nutley & Peter C. Smith eds., The Policy Press 2000).
49. Nick Black, Evidence based policy: proceed with care, 323 BMJ 275, 275 (2001).
50. See Nutley, supra note 37, at 26 fig. 2.1.
51. I.B. Scheel, K.B. Hagen & A.D. Oxman, The unbearable lightness of healthcare policy making: a description of a process aimed at giving it some weight, 57 J. Epidemiology and Cmty. Health 483 (2003). For the original enunciation of uses of research evidence, see Weiss, supra note 33.
52. Scheel, supra note 40; Weiss supra note 33, at 429 (referring to this use as the "political model").
53. Department for Environment Food and Rural Affairs, Evidence Based Policy Making(emphasis in original) (last visited July 31), http://www.defra.gov.uk/science/how/evidence.htm.2009
54. Non-US based examples include: EVIPNET: Evidence-Informed Policy Network for Better Decision Making, World Health Org., available at (last visited Aug. 11,) ("encourages policy-makers in low and middle-income countries to use evidence generated by research")http://www.who.int/rpc/evipnet/en/2009
55. United Nations Educ. Sci. Cultural Org., available at last visited Aug. 11) (discussing factors improving use of research in social policy via case studies)http://www.unesco.org/most/weiss.htm 2009
56. Evidence Based Policy Making, Dep't Envtl. Food and Rural Aff., Sept. 21, 2006, available at http://www.defra.gov.uk/science/how/evidence.htm (last visited Aug. 11, 2009
57. EPPI-Centre for Social Science Research Unit, The Evidence for Pol. and Prac. Info. and Co-ordinating Cen., available at (last visited Aug. 11, 2009) (promoting systematic reviews in non-clinical health issues, education, social care). U.S.-based examples include: Division of Behavioral and Social Sciences and Education Standing Committee on Social Science Evidence for Use, The Nat'l Acad. Nat'l Res. Council (2008) (to build bridges between high quality research (the supply side) and the appropriate and realistic uses of research evidence to guide decision making (the demand side))http://eppi.ioe.ac.uk/cms/
58. Coalition for Evidence-Based Pol. (2009) (a Washington D.C.-based nonprofit "to increase government effectiveness through rigorous evidence about 'what works'")
59. Drug Effectiveness Review Project, available at (last visited Aug. 21, 2009) (a collaboration of public entities in the US and Canada to produce systematic reviews of the comparative effectiveness and safety of drugs and use to inform local public policy).http://www.ohsu.edu/ohsuedu/research/policycenter/DERP/
60. Children's Mental Health Act of 2003, 405 Ill. Comp. Stat. 49/1-99 (2003).
61. Ill. Child. Mental Health P'ship, Strategic Plan for Building a Comprehensive Children's Mental Health System in Illinois, Executive Summary, 33 (June 30, 2005).
62. The criticisms that follow mirror criticisms of a view of law as purely rational, objective, and mechanistic in application vs. contextually defined and applied. For the law side, see discussion infra Part 4.1 and accompanying notes 62-65.
63. For a different way to view a "political" use, see Weiss, supra note 33, at 429.
64. Black, supra note 38, at 276 (see Box and accompanying discussion). Moreover, "policies are driven by ideology, value judgments, financial stringency, economic theory, political expediency, and intellectual fashion." Id.
65. For an interesting discussion of the hindrances to evidence use in policy (at the state government level) and potential facilitators of evidence use, from an empirical study, see Christopher J. Jewell & Lisa A. Bero, "Developing good taste in evidence:" facilitators of and hindrances to evidence-informed health policymaking in state government, 86 The Milbank Q. 177 (2008).
66. Sanderson 2003, supra note 5, at 339; Sanderson 2002, supra note 5.
67. Scheel, supra note 40, at 486 (describing enriching nature of this use); see also Weiss, supra note 33.
68. Scheel, supra note 40, at 486.
69. Bowen, supra note 34, at 0603.
70. Black, supra note 38, at 277. Stated another way: "As we move from EBM to evidence-based health policy, the decision-making context changes, shifting from the individual-clinical level to the population-policy level. Decisions are subject to greater public scrutiny and outcomes directly affect larger numbers of people, heightening the requirement for explicit justification." Mark J. Dobrow, Vivek Goel & R.E.G. Upshur, Evidence-based health policy: context and utilisation, 58 Soc. Sci. & Med. 207, 208 (2004).
71. As Muir Gray has stated:The job of the professional [researcher]... is to set out all the information about the probability and size of benefits and harms, and about the opportunity costs....This is decision making. The job of the politician is to take the decision, as opposed to making the decision, based on values. In the end values will always be more influential than evidence, and the tension between the two should be regarded as the very stuff of the relationship between expert and politician. Muir Gray, supra note 4, at 989. So here, "research is one part of the interconnected intellectual enterprise." Weiss, supra note 33, at 430.
72. Sanderson 2003, supra note 5, at 339; see generally Black, supra note 38, for more complete discussion of influences; see also Sanderson 2002, supra note 5.
73. Bowen, supra note 34, at 0600 fig. 1.
74. Sanderson 2003, supra note 5, at 340.
75. Ethics-informed policymaking as part of an "evidence-informed" process is an area ripe for future research. For more information, see J.F. Wharam & N. Daniels, Toward evidence-based policy making and standardized assessment in health policy reform, 6 JAMA 676, 676-679 (2007) (providing framework for ethical evaluation of health care reform); Warren Brookbanks, Therapeutic jurisprudence: conceiving an ethical framework, 8 J. L. & Med. 328 (2001) (applying an ethic of care to therapeutic jurisprudence as richer framework than consequentialist vision).
76. The language might also mirror what an ethically informed policymaking process might look like. For example, with an 'ethics-informed' perspective, we may rightly question the potential benefits and harms of policy approaches, their impacts on relationships, and the fairness of distributing benefits and burdens. See Brookbanks, supra note 60. See also Sanderson 2003, supra note 5, at 343 (urging evaluation's focus be broadened because "it must be acknowledged that the ethical and moral implications of the policies and the values and 'goods' (and 'bads') that they promote are amenable to 'rational' considerations and debate").
77. The recent hearings over the nomination of Judge Sonia Sotomayor to the US Supreme Court made vivid the debate: whether "empathy" has any role in judging and in one's take on interpreting "the law." See Ari Shapiro, Sotomayor Differs with Obama on 'Empathy' Issue, NPR, July 14, 2009, available at http://www.npr.org/templates/story/story.php?storyId=106569335&refre sh=true (last visited Aug. 21, 2009)
78. Ari Shapiro, Sotomayor: 'Fidelity To The Law' Guides Me, NPR, July 13, 2009, available at last visited Aug. 21, 2009)http://www.npr.org/templates/story/story.php?storyId=106492900& ps=rs
79. Winick, supra note 1.
80. see also id. at 186-191 (discussing an interdisciplinary examination of law, and more narrowly explaining the place of therapeutic jurisprudence within this examination).
81. Susan Daicoff, Making law therapeutic for lawyers: therapeutic jurisprudence, preventive law, and the psychology of lawyers, 5 Psychol., Pub. Pol'y, and L. 811(emphasis added), 813 (1999).
82. See, e.g., Stephen J. Anderer and David J. Glass, A Therapeutic Jurisprudence and Preventive Law Approach to Family Law, in Practicing Therapeutic Jurisprudence 207-234 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick, eds., Carolina Academic Press 2000).
83. See, e.g., Dennis P. Stolle, Professional responsibility in elder law: a synthesis of preventive law and therapeutic jurisprudence, 14 Behav. Sci. L. 459 (1996).
84. See Dennis P. Stolle, David B. Wexler, Bruce J. Winick & Edward A. Dauer, Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in Practicing Therapeutic Jurisprudence 7-9 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick eds., Carolina Academic Press 2000)
85. Daicoff, supra note 67.
86. Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in Practicing Therapeutic Jurisprudence 465-492 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick, eds., Carolina Academic Press 2000). Such a "comprehensive" reshaping would also include: preventive lawyering, creative problem solving, restorative justice, procedural justice, ADR/mediation, and collaborative law. Id. at 471-483.
87. David B. Wexler, Therapeutic Jurisprudence and the Culture of Critique, in David B. Wexler, Therapeutic Jurisprudence and the Culture of Critique, in Practicing Therapeutic Jurisprudence 449-464, 449 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick, eds., Carolina Academic Press 2000).
88. Brookbanks, supra note 60 at 330 (TJ is a "way of viewing law which engages the possibility of genuine relational dialogue favouring [sic] legal outcomes which emphasise [sic] psychological wellness over adversarial triumphalism").
89. Stolle, supra note 70, at 6.
90. Id. at 35 and fn. 96 (describing rise of "legal soft spots" as relating to client affairs and potential legal issues, and drawing parallel to "psycholegal soft spots"). This preventive approach in law parallels that of a preventive approach in medicine and the use of a medical check-up, discussed infra text accompany p. 6.
91. Bruce J. Winick, David B. Wexler & Edward A. Dauer, Preface: a new model for the practice of law, 5 Psychol., Pub. Pol., and L. 795 (1999).
92. Stolle, supra note 70, at 24-28.
93. David B. Wexler, Practicing Therapeutic Jurisprudence: Psycholegal Soft Spots and Strategies, in Practicing Therapeutic Jurisprudence, 48 (Dennis P. Stolle, David B. Wexler & Bruce J. Winick, eds., Carolina Academic Press 2000).
94. See infra Part 4.5 for more discussion of the empirical push in TJ - in law and, as suggested, in policy.
95. This builds on Wexler's model of psycholegal soft spots, discussed at Wexler, supra note 78, and accompanying text.
96. Robert F. Schopp, Therapeutic jurisprudence: integrated inquiry and instrumental prescriptions, 17 Behav. Sci. L. 589 (1999) (describes TJ as not adding normative but rather instrumental prescriptions, wherein TJ's value is in promoting integrated interdisciplinary scholarship).
97. For a more thorough discussion applying a relational model (drawing on an ethic of care) to TJ, see Brookbanks, supra note 60, at 339: "The challenge, for lawyers as for physicians, is to be able to assist their clients integrate the narrative of their life's experiences into an ongoing experience of life within which specific incidents of legal 'trauma' may be located and understood in such a way that the client is not destroyed by the shock of legal conflict and is able to process it as an aspect, and incident, in a life well lived."
98. This accords with an interactive view of policymaking, discussed infra Part 3.6.
99. For example, see infra Part 3 (discussing CHIPRA and its potential consequences).
100. Winick, supra note 1, at 196-197 (discussing difficulties with experimentation in the law).
101. See discussion infra Part 3.6.
102. Ken Kress, Therapeutic jurisprudence and the resolution of value conflicts: what we can expect, in practice, from theory, 17 Behav. Sci. L. 555, 585 (1999) (refuting arguments against TJ as unable to resolve value conflicts).
103. This goes to the point that what science tells us is working might not always accord with our view of what is just, fair, etc. For example, new reports suggest that assisted outpatient treatment programs, which provide a process for judicial order of outpatient treatment of certain individuals with mental disorders, are effective. See Marvin S. Swartz et al., New York State Assisted Outpatient Treatment Program Evaluation, Duke Univ. Sch. Med. (2009) available at (last visited Aug. 21 http://www.omh.state.ny.us/omhweb/resources/publications/aot_program_eva luation/, 2009)
104. However, some mental health advocates decry efforts mandating treatment and bringing treatment into the judicial realm, instead preferring less coercive means. In balancing alternatives, it is conceivable that the arguments against what is seen as an evidence-based practice potentially could hold sway in a policy sphere where values such as fairness and justice in treatment of persons with mental health disorders is a weighted consideration.
105. Sometimes it is best, say, for the US federal government to leave policymaking to the natural experiment of the states, or at the very least to let the states try various options before supporting through federal means any single approach. See, e.g., Frank J. Thompson, New federalism and health care policy: states and the old questions, 11 J. Health Pol. L. 647 (1986)
106. James W. Fossett, Alicia R. Ouellette, Sean Philpott, David Magnus & Glenn McGee, Federalism and Bioethics: States and Moral Pluralism, 37 The Hastings Center 24 (2007).
107. A host of other examples could be given. A few I intend to examine include: state support of inclusion of BMI reporting to parents through schools (e.g., Arkansas Act 1220 of 2003, Ark. Dep't Educ., available at, last visited Aug. 21, (annual (since modified) BMI screening of public school children, and reporting of the BMI and associated health risks to parents)) http://cnn.k12.ar.us/Healthy%20Schools%20Initiative/Information%20About% 20Act%201220%20of%202003.htm (2009)
108. state safe haven laws (e.g., Nebraska Legislative Bill 157 (Feb. 13, 2008) (allowed a person to drop off a child at hospital without prosecution but did not set age limit for how old child could be, leading to several instances of older children/teens being left, including by persons residing outside Nebraska, see Safe Haven Law, Neb. Dep't Health & Hum. Services, available at (last visited Aug. 26) (describing law))http://www.hhs.state.ne.us/SafeHaven/2009
109. child and adolescent vaccine policy (see R. Alta Charo, Politics, Parents, and Prophylaxis - Mandating HPV Vaccination in the United States, 356 New Eng. J. Med. 1905 (2007))
110. state newborn screening policy (see The President's Council on Bioethics, The Changing Moral Focus of Newborn Screening: An Ethical Inquiry by the President's Council on Bioethics (2008). Another area of interest for future examination includes the rise in medical legal partnerships (MLPs) to address legal issues as part of "medical" treatment. See Nat'l Center Med. L. Partnership, available at (last visited Aug. 11, 2009). MLPs recognize that legal barriers (or legal applications) could enhance health and move that knowledge into an interdisciplinary clinic-based, holistic approach to practice. Of note for purposes here, MLPs are identifying that individual cases may bring up the same legal issues, requiring a larger policy (legal reform) change - wherein the TJ/EIHP framework might be of use.http://www.medical-legalpartnership.org