Content Warning: This post discusses suicide and self-harm. If this raises distressing issues, support is available. Contact one of the services in your country listed on this website.
There is value in attending to the ‘jurisprudential wisdom’ that quietly shapes our world. This phrase is given to us by Gillian Rose (1947-1995), the British social and political theorist, whose work directs us to seek out the ‘juridical and litigious presuppositions of our formation’ in order that we might better understand and reflect upon the world. This is an effort that Vincent Lloyd terms an ‘immodest jurisprudence’.
Law has always been immodest. Take the tradition of therapeutic jurisprudence. It borrows the techniques of psychology, applying them to law, lawyering and legal process to better support the wellbeing of all those involved. So too psychoanalytic-oriented approaches to law, that argue that ‘psychoanalysis matters to law’ and then equipped with psychoanalytic theory and method offer analysis of the symptoms of law’s texts. The flow of this borrowing is, however, not always so one way. In matters of love for example, Alecia Simmonds shows how law took from psychology and its professions new reason and evidence for law’s award of damages for heartbreak while those same sources then generated the conditions for the withdrawal of law’s jurisdiction over matters of love and its harms.
If law so often takes up into itself the modes and methods of the therapeutic, then what ‘jurisprudential wisdom’ might be taken up in reverse? What are the ‘juridical and litigious’ presuppositions of the therapeutic apparatus?
Take, for example, counselling and psychotherapy. The Australian Counselling Association (ACA) the largest body of registered counsellors and psychotherapists in Australia, states in its Code of Ethics and Practice, that ‘counselling is a formal and contracted relationship and nothing else’. This is a striking characterisation of the therapeutic relationship: a contract where we might expect to find something else.
In speaking with practitioner-members of the ACA in recent research conducted with Dr Renata Grossi, contract was everywhere. Contract was the ‘structure’[Emma]*, the ‘game plan’[George], and the ‘springboard’ [Kylie] for the relationship between counsellor and client. But as one counsellor put it, the contract was also something more: the ‘working part: the nuts and bolts, the engine of things’ [Terry].
How contract becomes the ‘engine of things’ in the therapeutic endeavour is perhaps most evident in the ‘safety’, ‘no-harm’ or ‘no-suicide’ contract. These contracts are verbal or written agreements made between a practitioner and a patient or client. Their purpose is to increase the safety for a person experiencing suicidal ideation.
The use of the safety contract is widespread. As Michael Miller has written, ‘no one has claimed credit for contriving the phrase, “contracting for safety”…Still, it would be hard to practice as a mental health professional in the English language world without encountering this phrase—routinely.’
Stephen Edwards and Maria Harries provide a history of safety contracts and their ‘controversial life’. They locate their entrance into the literature in the early 1970’s with the work of Drye, Goulding & Goulding and ‘Redecision Therapy’, a humanistic therapy that synthesised elements of Gestalt psychotherapy, psychoanalytic and transactional analysis. In their safety contract, the therapist asked the patient to state: ‘No matter what, I will not kill myself, accidently or on purpose, at any time’. The therapist pays attention to the patient’s phenomenological experience as they disclose their experience of contracting, sharpening the presence of incongruence, objections and qualifications. Where these hedges are present, further therapeutic assessment and process is required until the patient is able to contract without the presence of objection or qualification in both in the contracting statement and in the experience of contracting. The clinical utility of this safety contract is not the agreement. Reflecting the experimental orientation of Gestalt therapy, it is the opportunity afforded by tracking the process of formation itself in the ‘here-and-now’ of the relationship between therapist and client as the real material of therapy.
In their history, Edwards and Harries chronicle a proliferation of suicide prevention contracting from this moment. First with the emergence of volunteer-led community crisis centres, then with adoption by brief problem-focused therapies during the 1960’s and 70’s, followed by a life in inpatient settings with adoption by mental health and psychiatric nurses through de-institutionalisation and beyond. At the time they publish their history (2007) ‘no-suicide contracts and documented verbal no-suicide agreements appear to have become almost routine and, arguably, an almost essential component of practitioners’ responses to medico-legal anxieties’ while practitioners also use such contracts in attempts to ‘mitigate the demands of an over-stretched service environment’.
As contract travelled across time, modality and context it underwent significant change. These changing forms resonate with different theories of contract alive in the legal tradition.
The humanistic, long-term therapeutic approach that surrounded the emergence of safety contracts was marked by an attentiveness to the phenomenological experience of contracting unfolding over time, explored in the ‘in-between’ of two parties sustained in relationship over long periods. This therapeutic approach and its attendant material conditions generated a safety contract that seems to mirror a more relational theory of contract, a term coined by legal scholar Ian Macneil. Relational contracting is gradual and incremental. Relational contracts engage in parties in contracts of ‘long duration’ that emphasise ‘personal involvement’ and, as Paul J Gudel put it, the exchange is of things ‘at least in part…difficult to monetise or otherwise measure’.
The mode of humanistic, longer-duration therapy means that time, agreement, exchange and terms of the safety contract are more relational. What Macneil wrote of relational contract seems true of the safety contract in the hands of redecision therapy: ‘participants never intend or expect to see the whole future of the relation as presentiated at any single time, but view the relation as an ongoing integration of behavior to grow and vary with events in a largely unforeseeable future.’
The form the safety contract takes in the era of brief problem-focused therapies seems to resonate with a different vision of contract. As safety contracting was taken up by cognitive and behavioural therapies, practitioners generated a safety contract in a manner which fit these therapies of shorter duration and their other commitments. Edwards and Harries saw the attraction of safety contracts for these therapeutic approaches. ‘Treatment contracts’ are already used for other purposes in these modalities, and the safety contract could be redrafted to meet the modality’s broad aim to have clients ‘actively agree to be trained in, rehearse and practise strategies during non-session time’. As Range et al recommends, for these therapeutic approaches, ‘good [safety] contracts are specific, individualized, collaborative, positive, context-sensitive, and copied as needed’. This safety contract is ‘specific and detailed in what qualifies as a violation of contract and what are the exact definitions of terms in the contract’. Rather than gradual, and of long duration, they are not ‘a forever promise’ but instead have ‘a limited time frame, such as until the next appointment’ when it can be transacted anew. ‘Realistically,’ advises Range and colleagues, ‘no-suicide contracts are often necessary on the first visit, when the clinician has no history with the patient, and little time to forge a relationship.’
This form of safety contract is more akin to what relational contract theorists describe as a ‘discrete exchange’. The discrete exchange contract emphasises the transactional. And precision. Exchange is more discrete – in time, terms, and agreement – and is more clearly able to be measured. They are of ‘short duration, involving limited personal interactions’. This safety contract, like the discrete exchange contract, aims for completeness – even if it be sustained for a short duration. Paul J Gudel, again, says of the discrete exchange contract that the form tries to bring the ‘complete future of the deal wholly into the present through a complete planning of the transaction, planning which then binds the parties’. A description which seems to fit the safety contract generated by cognitive and behavioural therapies.
The description above overly simplifies the world. Relational contract theory speaks primarily of a continuum of contracts. From the ‘most relational’ to the ‘discrete exchange’. No contract – for safety or otherwise – can be purely discrete or relational, as no therapeutic modality can be. In the words of Range et al, safety contracts are ‘more beneficial after a therapeutic alliance is established than as an initial step’. However, there is hidden jurisprudential curriculum at work in these appearances of contract.
The contemporary suicide prevention literature is turning away from contract. In the place of a ‘safety contract’ has arisen the ‘safety plan’. Despite the disavowal of the ‘contractual’ these documents remain deeply so. They include explicit, detailed and step-wise processes for recognising and responding to distress and crisis and agreement to undertake those steps. Templates from Samaritans in the UK, for example, include promissory statements (‘I will go…’ and ‘I will call…’). The safety plan resembles the contractual infrastructures used in complex commercial contracts that support promisors to bring about the contractual objective through self-help and ‘best endeavours’ obligations, while avoiding the expense of failure and dispute frequently in favour of the promisee.
The disavowal of the ‘contractual’ in safety plans perhaps signals something else too, particularly with the emergence of safety planning apps and DIY templates. Without contract, there is no other party. Just the self. Safety plans contain a complex contractual infrastructure absent the promisee. For the promisor they may represent a form of self-help, and commitment to make ‘best endeavours’ as contract law would have it; and an ever-more advanced form of risk mitigation for an over-stretched service environment.
*All names have been pseudonymised. HREC ETH22-7782
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