Chapter 18 Legal and Ethical Issues Ch 18

Do involuntarily committed patients have the right to refuse treatment? Do involuntarily committed patients have the right to refuse treatment? Can and should we commit persons to psychiatric hospitals against their will? Can and should we commit persons to psychiatric hospitals against their will? Is mental illness a reasonable excuse for committing a criminal offense? Is mental illness a reasonable excuse for committing a criminal offense? What is ethical or legal practice?; Are they the same?; and, how to decide? What is ethical or legal practice?; Are they the same?; and, how to decide?

 Defining “Mental Illness”  Mental Illness is a Legal Concept  Varies by State  Not the Same as Psychological Disorder  Defining “Mental Illness”  Mental Illness is a Legal Concept  Varies by State  Not the Same as Psychological Disorder

Constitutional Freedoms The Constitution outlines the powers of government –The amendments to the Constitution provide Controls over the powers of the federal government Assurances of maximum liberty for the citizens of the United States The treatment of abnormal behavior can present a conflict between the protection of society as a whole and the rights of the person Ch 18.1

Commitment Procedures Criminal commitment is the process in which a mentally ill person who has committed a crime is confined to an institution –For determination of competency to stand trial –Following acquittal on the basis of insanity Civil commitment refers to a set of procedures by which a mentally ill and dangerous person can be incarcerated within a mental hospital Ch 18.2

 The Issues  If Someone Commits a Crime While Mentally Ill, are They Responsible?  If Someone is Mentally Ill now, but NOT at the Time of the Crime, Should They be Brought to Court?  If Someone was Mentally Ill at the Time of the Crime, BUT Appears Fine Now, Should They be Held Accountable?  The Issues  If Someone Commits a Crime While Mentally Ill, are They Responsible?  If Someone is Mentally Ill now, but NOT at the Time of the Crime, Should They be Brought to Court?  If Someone was Mentally Ill at the Time of the Crime, BUT Appears Fine Now, Should They be Held Accountable?

 Processes Involved  Accused of Committing a Crime  Detained in a Mental Health Facility  Assessed for Fitness or Unfitness to Stand Trial OR  Found not Guilty by Reason of Insanity  Processes Involved  Accused of Committing a Crime  Detained in a Mental Health Facility  Assessed for Fitness or Unfitness to Stand Trial OR  Found not Guilty by Reason of Insanity

The Insanity Defense Insanity is a legal term The insanity defense is the legal argument that a person should not be held accountable for an illegal act if that act followed from a mental illness that interferes with rationality or that results from some other circumstance, such as not knowing right from wrong (“Not guilty by reason of insanity” NGRI) Ch 18.3

Origins of the Insanity Defense Irresistible impulse means that the person was compelled to commit the criminal act M’Naghten rule establishes that the person was laboring under a defect of reason as not to know the nature and quality of the act Durham rule states that the person is not responsible if their unlawful act was the product of mental disease or mental defect American Law Institute Guidelines –Knowledge of right vs. wrong, self-control, and diminished capacity Insanity Defense Reform Act –Movement back to M’Naughten-like standards Ch 18.4

Table 18.1 Landmark Cases and Laws Regarding the Insanity Defense

Insanity Defense Reforms The successful use of the insanity defense by John Hinckley led to reform efforts –Elimination of the irresistible impulse component –Mental defect must be “severe” –Burden of proof is shifted to the defendants to prove that the defendant was not sane –50% of states subsequently considered abolishing the insanity defense “Guilty but mentally ill” (GBMI) plea allows a person to be found guilty but incarcerated in a mental hospital rather than a prison Szasz’s distinction: descriptive vs. ascriptive responsibility for a crime The Case of Jones v. United States Ch 18.5

Competency to Stand Trial The insanity defense applies the mental state of the person at the time of the crime Competency assesses whether the person has sufficient current mental presence to stand trial –Be able to communicate with their attorney (assist in their own defense) –Understand the charges against them –Have a rational and factual understanding of the proceedings –Requires judgment of expert witnesses –Incompetent persons are placed in an institution for treatment for some period of time (involuntary commitment) Ch 18.6

 How Often is the Insanity Defense Used?  Less Than 1% of All Cases! Of those 1%, many spend more time hospitalized than they would have in jail Of those 1%, many spend more time hospitalized than they would have in jail  How Often is the Insanity Defense Used?  Less Than 1% of All Cases! Of those 1%, many spend more time hospitalized than they would have in jail Of those 1%, many spend more time hospitalized than they would have in jail

Civil Commitment In civil commitment, the person has not committed a crime Civil commitment is involuntary placement in a psychiatric hospital Justification for commitment includes –The person is mentally ill –The person is judged to be a danger to themselves (and to others) Formal procedures involve the court Ch 18.7

Protections for Committed Mental Patients Right to written notification to counsel Right to a jury decision regarding commitment Protection against self-incrimination Right to treatment and right to refuse treatment. Exception: –Increased use of preventive detention of sexual predators.

 Civil Commitment Laws  Legal Declaration of Mental Illness  Hospitalization for Treatment  Civil Commitment Laws  Legal Declaration of Mental Illness  Hospitalization for Treatment  Criteria for Civil Commitment  Person has a Mental Illness  Needs Treatment  Is Dangerous (self or others)  Is Unable to Care for Self  Criteria for Civil Commitment  Person has a Mental Illness  Needs Treatment  Is Dangerous (self or others)  Is Unable to Care for Self

 Governmental Justification  Protection of Public Safety & Welfare  Exercises Police Power  Exercises “Parens Patriae” (“state / country as parent”)  Governmental Justification  Protection of Public Safety & Welfare  Exercises Police Power  Exercises “Parens Patriae” (“state / country as parent”)

 Changes Affecting Civil Commitment  Supreme Court Ruling  Changes Affecting Civil Commitment  Supreme Court Ruling  Consequences of Changes  Criminalization of Mentally Ill  Deinstitutionalization (“transinstitutionalization”?)  Homelessness  Consequences of Changes  Criminalization of Mentally Ill  Deinstitutionalization (“transinstitutionalization”?)  Homelessness

 Mental Illness is No Longer Enough  Massive Discharge of Patients  From 560,000 Hospitalized in 1955  To < 100,000 Hospitalized Today  “Greyhound Therapy”  Mental Illness is No Longer Enough  Massive Discharge of Patients  From 560,000 Hospitalized in 1955  To < 100,000 Hospitalized Today  “Greyhound Therapy”  Many Psychiatric Hospitals Closed  BUT, Did it Work?  Many Psychiatric Hospitals Closed  BUT, Did it Work?

Preventative Detention The justification of civil commitment includes the premise that the person may be dangerous to themselves and others There is not a strong link between mental illness and violence –Only 3% of the violence in the U.S.A. is linked to mental illness –90% of the mentally ill are not violent Predicting future violence is difficult Tarasoff v. Regents of the University of California –The Duty to Warn and to Protect Ch 18.8

 Tarasoff v. Regents of U. California The Result? The Result?  Duty to Warn  Functioning as Expert Witness  Court Still Makes MI Judgment  Assess Competence & Malingering  Assess Dangerousness, etc.  Tarasoff v. Regents of U. California The Result? The Result?  Duty to Warn  Functioning as Expert Witness  Court Still Makes MI Judgment  Assess Competence & Malingering  Assess Dangerousness, etc.

 Patients Have the Right to  Treatment  Refuse Treatment  Point to Ponder Can people be forced to become competent to stand trial? Can people be forced to become competent to stand trial?  Patients Have the Right to  Treatment  Refuse Treatment  Point to Ponder Can people be forced to become competent to stand trial? Can people be forced to become competent to stand trial?

Rights of the Mentally Ill Recent trends include –The right to be treated during incarceration –The right to have their status reassessed during extended commitments –The right to refuse treatment (except when there is clear and imminent dangerousness) O’Connor v. Donaldson, 1975; Addington v. Texas, 1979 –The right to be treated in the least restrictive environmental setting Specific guidelines have been proposed for treatment facilities Ch 18.9

Clinical Practice Guidelines and Standards Agency for Health Care Policy and Research –Focus on delivery of efficient and cost-effective mental health services –Dissemination of relevant state-of-the-art information to practitioners –Establish clinical practice guidelines for assessment and treatment American Psychological Association’s Practice Guidelines –Standards for clinical efficacy research –Standards for clinical effectiveness research –Examples include APA Division 12 list of empirically-supported treatments

Ethical Dilemmas in Research Science is concerned with the how and why of what is; ethics and values are concerned with what ought to be… Scientists have not always treated subjects in an ethical fashion –Medical experiments often do not explain the nature of the experiment or the risks of the experiment to the subjects –Research review boards were created to protect subjects Ch 18.10

Informed Consent Informed consent involves providing subjects with information about the research project –The nature of the research –The risks associated with the research –College students and mental patients may not have sufficient understanding to give informed consent Subjects have the right to refuse to take part in the research project Ch 18.11

Limits on Communication Confidentiality implies that information shared with a physician or psychologist will not be revealed to others Privileged communication involves a relationship that is protected by law –Husband and wife –Physician and patient –Attorney and client –Psychologist and patient Ch 18.12

Recovered Memories Recovered memories refers to clinical situations in which childhood sexual abuse is remembered during therapy –One concern is whether the recovered memories are genuine or whether these are implanted by the therapist Recent guidelines call for therapists to take a “neutral” stance when a patient recalls abuse Ch 18.13