Exclusion and gatekeeping in psychiatric-legal borderland: Keeping the material in view

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The concept of the “medico-legal borderland” commonly refers to the discursive intersection of medical and legal knowledges in the constitution of a new knowledge regime (McClelland, 2013). The following essay adds to the discussion of borderlands an empirical illustration showing how the flow of knowledge in borderland spaces is highly policed and disciplined. Further, it demonstrates that even disciplining itself does not necessarily neatly adhere to disciplinary boundaries of medicine vs. law, but is in fact more complex and nuanced. I use a short ethnographic entry from my research fieldnotes to show how the policing of knowledge occurs in two moments of involuntary psychiatric admission, when a lawyer attempted to access his client’s medical records. Through these ethnographic fieldnotes, I also demonstrate the potential implications of knowledge policing for patients involved in involuntary admission cases.

I collected this data during my doctoral fieldwork in Poland between August 2012 and February 2014. My doctoral research project, designed as an institutional ethnography, explored the socio-legal organization of legal aid lawyering and involuntary psychiatric admission in Poland. I was fortunate to observe the work of psychiatric and legal professionals at various stages of the admission process. On February 23, 2013, I wrote a fieldnote from one of the encounters that I observed:

It was somewhat unexpected to be welcomed with such heated emotions on a cold February afternoon as I arrived at the district courthouse to accompany a court judge to a psychiatric hospital for a preliminary hearing of involuntary admission cases. “This lawyer is so arrogant,” exclaimed the judge to the senior court clerk and me as we were arriving at the hospital. I learned that the lawyer being discussed had come directly to the psychiatric hospital with a request to access the medical records of an involuntarily admitted client he was to represent. When the lawyer was denied access to the client/patient’s records he went to the hospital director. The director, the judge, and the senior clerk were outraged. The lawyer’s request also caused consternation among psychiatrists and hospital personnel who claimed to be unprepared to deal with the legalities of the situation and sought the judge’s instruction on the matter. The judge advised the hospital personnel to deny access to patient medical files to any lawyers who, in judge’s opinion, tried to act outside their legal authority by attempting to access spaces where their prerogative to provide representation does not extend. The judge also stated that lawyers could only access medical files while in the courthouse and after submitting a formal request, thus limiting the role of lawyers to formal legal proceedings and traditionally understood legal spaces.

The above note shows how medical and legal professionals (psychiatrists and judges) are bound together to exclude another legal professional (a lawyer) from a meaningful engagement with knowledge production about his involuntarily admitted client. Importantly, it is in these very medical spaces, where the judge meets with the psychiatrists and admitted person, that medical facts are transformed into legal facts. Yet, even as that medico-legal site of knowledge came into being, it remained out of reach for the lawyer, who was perceived as an intruder and invader of a space reserved for psychiatrists and judges. The judge’s emotional response—and a subsequent directive to hospital personnel not to permit the lawyer’s access by requiring the client’s consent for their file to be viewed—confirm the precariousness of the space being governed and also the standing of the knowledge itself. Barrera (2018) notes that institutional practices of exclusion and gatekeeping help to reinforce institutional authority and social prestige by “excluding certain kinds of relationships, people, and knowledge” (91). In constructing the lawyer as usurping customary structures of power by attempting to engage in knowledge production in sites “outside” his professional prerogative, the judges and psychiatrists also delegitimized his knowledge and expertise. The materiality of a physical space – the psychiatric hospital – was used to delineate discursive boundaries between the professionals who are legitimized from those who are not permitted to take part in producing knowledge therein.

The story of the exclusion and gatekeeping does not end there, however. If the lawyer were to follow the alternative route for accessing files suggested by the judge, the materiality of the application process would pose a genuine barrier to gaining knowledge of the ‘facts’ inscribed in clients’ medical documents needed to best prepare for a hearing. A person who wants to initiate that legal bureaucratic process of accessing such files must first submit an application to subpoena the medical records in question. This action requires a district court judge’s authorization. Correspondence from the court is then mailed or couriered to the hospital. Upon its reception and recording in the hospital’s incoming correspondence files, the hospital supervisor must authorize it. Hospital personnel then proceed to copy the requested patient records, sending them on to the district court. Court personnel inform the judge that the copies have arrived, and the judge prepares an administrative order to incorporate those record into the case file.  Finally, the case file is delivered to the courthouse reading room, where the lawyer can read the dossier. The Polish Mental Health Protection Act of 1994, which is the statute governing the legal processing of involuntary admission cases in the country, stipulates that a 14-day timeline within the admission hearing be scheduled and upheld.

While lawyers can, in theory, access medical records in cases of involuntary psychiatric admission cases in Poland, in practice, the material organization of said access makes it next to impossible to obtain requisite knowledge within the legal time limits. Because the lawyer could, potentially, destabilize the medico-legal narrative of his client’s mental illness and dangerousness (grounds for emergency involuntary admission in Poland) by contesting facts established in medical files and presenting new evidence, his access to these files was denied at one point and significantly postponed at another. Through these practices of denying the lawyer in question access to material artifacts (i.e., patient records) and to the medical space of knowledge production, psychiatric professionals, judges, and hospital governing authorities gave a clear signal whose professional knowledge counts in the physical space of a psychiatric hospital and in the legal procedure pertaining to involuntary psychiatric admission. Physical barriers—such as access to physical buildings and legal or medical files—were tactically employed into the practices of gatekeeping to reinforce inclusionary and exclusionary practices in the production of knowledge.

In conclusion, while these findings give us reason to pause, they also should encourage us to consider everyday practices and auxiliary processes in spaces outside of courtroom. First, by taking the materialities of organizational settings and legal processes as our objects of analysis, we carry the promise of gaining better understandings of how practices of exclusion are achieved in our daily activities and in those of people and professionals all around us. Thus, we should pay closer attention to the poorly understood intersections between the ‘main’ legal processes and the taken-for-granted legal institutional logic governing that of their auxiliary counterparts. And second, these findings reveal how the effects of the latter for knowledge production can be equally troubling. Lastly, they show how practices of monitoring, gatekeeping and disciplining access actually are better understood as a collaborative achievement. Boundaries governing who is authorized to partake in knowledge production, and who is not, are not a matter of simple or straightforward separation between medical and legal authorities. In practice, as we see in this example, such contours are more complex and nuanced then we would assume at first blush.

Works Cited

Barrera, L. (2018), Gatekeeping: Documents, legal knowledge, and judicial authority in contemporary Argentina. PoLAR, 41(1), 90-107.

Doll, A. and Walby, K. (2019 forthcoming). Institutional ethnography as a method of inquiry for criminal justice and socio-legal studies. International Journal for Crime, Justice and Social Democracy 8(1).

Doll, A. (2017). Lawyering for the ‘Mad’: An institutional ethnography of involuntary admission to psychiatric facilities in Poland (Unpublished doctoral dissertation). University of Victoria, Victoria.

McClelland, A. (2013). Research at the medico-legal borderland: Perspectives on HIV and criminal law. Retrieved from http://somatosphere.net/2013/10/research-at-the-medico-legal-borderland.html (Accessed August 21, 2018).

(Poland) Mental Health Protection Act of 19 August 1994 [Ustawa o ochronie zdrowia psychicznego z dnia 19 sierpnia 1994 roku], in 1994 Journal of Laws, no. 231, item 1375.

Smith, D. (2005). Institutional ethnography: Sociology for people. Lanham: Rowman & Littlefield Publishers, Inc.

Agnieszka Doll, PhD, is a Postdoctoral Fellow with the Research Group on Health and Law at McGill University(Montreal, Quebec). Her research focuses on legal and social regimes pertaining to involuntary psychiatric hospitalization; processes of knowledge production; professional practices and institutions; socio-legal studies; and gender and law. She uses qualitative and feminist methodologies. A lawyer by training, she practiced law in Poland and Canada. Currently, she teaches courses in health care law and health care administration for Athabasca University (Edmonton, Alberta).

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