Les décisions d'hospitalisation et de soins psychiatriques sans le consentement des patients dans des contextes clinique et judiciaire: une étude du pluralisme normatif appliqué

How do those working in the intersection between law and psychiatry make decisions to confine or treat patients against their will? Do they simply apply the legal provisions that are supposed to regulate such actions, or do they refer to other forms of normativity? More globally, how do such stakeholders adopt norms and how is the choice of norms related to individuals’ roles in the social fabric? These are, very briefly, the issues explored in this thesis. This thesis has two distinct, but complementary, objectives. The first is theoretical, and concerns the sociological understanding of the phenomenon of normative pluralism as it operates in the social fabric and more specifically of individuals’ roles in normative dynamics. The second objective is to place normative pluralism and human rights into perspective in the special context of psychiatry. For this, we have chosen to study legal, clinical and social approaches to confining patients and to psychiatric care. This brings to light various latent normative tensions, which proves useful when drawing up theories about normative relations.  We begin by doing an epistemological analysis of the legal and sociological paradigms of social regulation and internormativity. In this section, we explore different conceptions of law and normativity and, by extension, the shaping of human and social relations. Our first conclusion from this analysis is that the different forms of normativity interweave in complex, changing ways and that no clear hierarchy always emerges. Our second conclusion is that individuals influence the application of norms, whether they are legal or not.  The plurality of norms and of the meanings that they convey naturally confronts individuals with choices among different standards. In order to gain a better understanding of individuals’ real roles in normative dynamics, since individuals have a certain degree of freedom, we have taken a subjectivist, constructivist point of view. From this perspective, interpretations of norms and the meanings they convey are related to individuals’ conceptions of the meaning of their actions and roles in interpersonal and social relations.   It is from this perspective that we propose the applied normative pluralism model, which is inspired largely by the sociological approaches we have studied and more specifically by the concept of “living law.” Using this model, we conceptualize normative pluralism as a set of norms flowing from various sources that may be in substantial contradiction and have different weights. Indeed, describing psychiatric discourse as a behavioural norm of normality is a perfect example of the cleavage between different perspectives on social ties, especially with respect to psychiatric patients. In the proposed model, each norm is twinned with cognitive or axiological rationality, depending on the nature of the relationship to the Other. Our hypothesis is that the actor’s degree of freedom correlates with the rigidity of the legal framework: the more specific the law is, the less the individual will have recourse to other forms of normativity.  In order to verify our hypothesis, we have used two distinct situations that are regulated by law in different ways but that have similar ethical and legal stakes: non-consensual hospitalization and psychiatric care, in other words, confinement to an institution and court authorization of care (Québec Civil Code, articles 30 and 16).   Our empirical research on judges and psychiatrists has been designed to map the complex relationships between those studied (the meanings they give to their actions, their conceptions of their roles in the social fabric) and norms. The findings show that two types of norms are in fact complementary: normative and factual propositions. The former are associated with the role that the individual thinks he or she has, while the latter are used in practical implementation of that role. Similarly, the weight of a discourse on normality demonstrates the survival of a paternalist moral perspective with its roots in psychiatry. This is difficult to reconcile with an approach based on human rights. Finally, we conclude that the choice between different types of norms is influenced by the conception that each individual has of the society in which he or she lives, and more specifically of his or her role in that society. Our empirical research raises questions about what is underlying the real nature of legal and psychiatric intervention with respect to confining patients to institutions and authorizing care, and about the pragmatic and ontological foundations of law in these areas.

Keyphrases: Normative pluralism, Living normativity, Psychiatric law, Confinement, Committal, Authorization of care, Psychiatry, Abnormality, Sociology of law