Legal and Ethical Issues Kimberley Clow

Outline Legal Issues Legal Issues  Criminal Commitment  Tests of Mental State  Civil Commitment  Rights of Patients Ethical Issues Ethical Issues  Privacy  Confidentiality  Limitations  Dual Relationships

Criminal Commitment Being incarcerated for committing a crime  We have free will  Responsible for our choices  Suffer the consequences of our actions Issues arise when individuals  Aren’t aware of the consequences to their actions  Are not freely choosing to perform certain actions

Mental State of Defendant Insanity Defence Insanity Defence  M’Naughten Rule  Durham Rule  Irresistible Impulse Test  American Law Institute Rule Competency to Stand Trial Competency to Stand Trial  Factual understanding?  Rational understanding?  Able to consult with counsel?

Little Known Facts The Insanity Defence is used < 1% The Insanity Defence is used < 1%  Most often rejected  Judges reject the plea about 50%  Juries reject the plea 85%  When plea is successful  <15% are murder charges “Not guilty by reason of insanity” “Not guilty by reason of insanity”  Do NOT go free!  Confined to mental hospital

The Defense is Misperceived

Reforms Since the Hinckley case … Since the Hinckley case …  Rather than prove a defendant’s sanity, must now convince judge or jury that clients are insane  Restrict use of defense  Connecticut doubled the average term spent in institutions  Idaho, Montana, & Utah abolished the defense!  “Guilty but Mentally Ill” Plea has emerged

Civil Commitment But you can be committed to an institution against your will even if you didn’t commit a crime or do anything wrong But you can be committed to an institution against your will even if you didn’t commit a crime or do anything wrong  Criteria for Civil Commitment  Person presents clear and imminent danger to self or others  Inability to care for self  Inability to make responsible decisions  Procedure  Petition court for examination  Formal hearing is held

Rights of Treatment The Right to Treatment The Right to Treatment  The Least Restrictive Alternative to Treatment  The Right to a Humane Environment  Protection and Advocacy for Mentally Ill Individuals The Right to Refuse Treatment The Right to Refuse Treatment  Must have informed consent before conducting treatment  Especially risky or intrusive treatments  Cannot force people to take antipsychotic medication in order to be competent to stand trial

Ethics What are the potential issues? What are the potential issues?  Do no harm  Do not exploit  Practice only within your competence  Treat people with respect and dignity  Protect confidentiality  Obtain informed consent first  Practice within the framework of social equity and justice

Other Ethical Issues Privacy Privacy  Limiting other’s access to information  Assuring freedom from intrusions Confidentiality Confidentiality  Refers to legal rules and ethics that protect individual from unauthorised disclosure of this information Privilege Privilege  An exception to the general rule that the public has a right to relevant evidence in a court proceeding

Limits on Confidentiality Confidentiality, however, is not a RIGHT Confidentiality, however, is not a RIGHT  We strive to provide confidentiality, because it is important, but there are a number of situations that can arise where confidentiality is broken Limits on Confidentiality Limits on Confidentiality  Mandatory Reporting  Duty to Warn  Duty to Protect  Legal System Exceptions

How to Act? Consider the following: Consider the following:  Describe parameters of situation  Define the potential issues involved  Consult any existing guidelines  Evaluate the rights, responsibilities, and welfare of all affected parties  Generate alternatives for each issue  Calculate consequences of all alternatives  Based on evidence, not just conjecture!  Choose the lesser of the evils

Dual Relationships Dual Relationships Dual Relationships  When the therapist is in another, significantly different relationship with one of his or her clients  social, financial, professional, sexual Problems with Dual Relationships Problems with Dual Relationships  Conflict of interest  Power differential Sexual relationships are NOT permitted!!! Sexual relationships are NOT permitted!!!

Therapist Sex Differences Behaviour Sex Difference Hugging a client F>M Having client use your first name F>M Say to client, "I’m sexually attracted to you" M>F Treating homosexuality as pathological M>F Engaging in sexual fantasy about client M>F Directly soliciting person to be client M>F