1. Law, Society, and the Mental Health Profession
chapter sixteen
Law, Society, and the Mental Health Profession

2. Law, Society, and the Mental Health Profession
Psychological dysfunctioning of an individual does not occur in isolation
It is influenced and sometimes caused by societal and social factors
It affects the lives of relatives, friends, and acquaintances
Clinical scientists and practitioners do not conduct their work in isolation
They are affecting and affected by other societal institutions
THE LAW

3. This relationship has two distinct aspects
Law and Mental Health
LEGAL FIELD
Legislative and judicial systems; two social institutions that have a particularly strong impact on the mental health profession
This relationship has two distinct aspects
Mental health professionals often play a role in the criminal justice system (“PSYCHOLOGY IN LAW”)
The legislative and judicial systems act upon the clinical field, regulating certain aspects of mental health care (“LAW IN PSYCHOLOGY”)
FORENSIC PSYCHOLOGY
Intersection between the mental health field and the legal and judicial systems

4. How Do Clinicians Influence the Criminal Justice System?
To arrive at just and appropriate punishments, the courts need to know whether defendants are responsible for committing crimes and capable of defending themselves in court
These determinations are guided by the opinions of mental health professionals
For example, people who suffer from severe mental instability may not be responsible for their actions or be able to defend themselves in court.

5. How Do Clinicians Influence the Criminal Justice System?
When people accused of crimes are judged to be mentally unstable, they are usually sent to a mental institution for treatment (CRIMINAL COMMITMENT)
Several forms
NOT GUILTY BY REASON OF INSANITY (NGRI)
COMMITTED UNTIL COMPETENT TO STAND TRIAL
Mentally unstable at the time of the crime = if found NOT GUILTY BY REASON OF INSANITY (NGRI), committed until improved enough to be released
Mentally unstable at the time of trial = COMMITTED UNTIL COMPETENT TO STAND TRIAL

6. How Do Clinicians Influence the Criminal Justice System?
Judgments of mental instability have provoked many arguments
Loopholes
Justice system requires look at extenuating circumstances
Criminal commitment differs from country to country
These judgments of mental instability have stirred many arguments.
Some consider the judgments “loopholes.”
Others argue that a legal system cannot be just unless it allows for extenuating circumstances, such as mental instability.

7. Criminal Commitment and Insanity During Commission of a Crime
1843: M’Naghten test or rule
Defendant also had to be unable to know right from wrong
Late nineteenth century: Irresistible impulse test
Insanity based on inability to control one’s actions
1954: Durham test
Not criminally responsible if unlawful act was product of mental disease
1955: American Law Institute test (ALI) test
Combined aspects of M’Naghten and Durham
1983: APA recommendation
Call for return to M’Naghten test
“INSANITY” is a legal term.
The defendant may have a mental disorder but not qualify for a legal definition of insanity.
The M’Naghten test stated that experiencing a mental disorder at the time of a crime did not by itself mean that the person was insane; the defendant also had to be unable to know right from wrong.
In the late nineteenth century, some U.S. courts adopted a different standard of insanity:
The irresistible impulse test emphasized the inability to control one’s actions (“fit of passion” defense).
A third test also briefly became popular: The Durham test: Not criminally responsible if the person’s “unlawful act was the product of mental disease or defect.” In 1955, the American Law Institute developed a test that combined aspects of the M’Naghten, irresistible impulse, and Durham tests.
The American Law Institute test held that people are not criminally responsible if at the time of the crime they had a mental disorder or defect that prevented them from knowing right or wrong OR from being able to control themselves and to follow the law. The test was adopted, but was criticized for being too “liberal.”
In 1983, the American Psychiatric Association recommended a return to M’Naghten.
This test now is used in all cases tried in federal courts and in about half of state courts.
The more liberal ALI standard is still used in the remaining state courts, save four, which have essentially eliminated the insanity plea altogether.

8. Crimes for Which Persons Are Found Not Guilty by Reason of Insanity (NGRI)
Reviews of NGRI verdicts in a number of states show that most people who are acquitted on this basis had been charged with a violent crime
(Based on APA, 2003; Steadman et al., 1993; Callahan et al., 1991.)
Under this standard, about two-thirds of defendants acquitted by reason of insanity qualify for a diagnosis of schizophrenia.
The vast majority have a history of past hospitalization, arrest, or both.
About 50 percent are Caucasian.
About 86 percent are male.
About 65 percent of cases involve violent crime of some sort.
Close to 15 percent of those acquitted are accused specifically of murder.

9. What Concerns Are Raised by the Insanity Defense?
Despite changes in the insanity standard, criticism of the defense continues
Fundamental difference between the law and the science of human behavior
Uncertainty of scientific knowledge about abnormal behavior
Defense allows dangerous criminals to escape punishment
One concern is the fundamental difference between the law and the science of human behavior.
The law assumes that individuals have free will and are generally responsible for their actions.
In contrast, several models of human behavior assume that physical or psychological forces act to determine the individual’s behavior.
A second criticism points to the uncertainty of scientific knowledge about abnormal behavior.
The largest criticism is that the defense allows dangerous criminals to escape punishment.
In reality, the number of such cases is small (less than 1 in 400).

10. What Concerns Are Raised by the Insanity Defense?
During most of U.S. history
Successful insanity plea amounted to a long-term prison sentence
Today, offenders are being released earlier
Increasing effectiveness of drug therapy and other treatments in institutions
Growing reaction against extended institutionalization
Greater emphasis on patients’ rights
Information for image In 2002 Brian David Mitchell abducted a 14-year-old teenager named Elizabeth Smart at knifepoint from her home and held her until she was rescued 9 months later.
For 7 years following his capture, Mitchell was declared incompetent to stand trial.
Finally, in 2010, a federal court judge called him an “effectively misleading psychopath” and scheduled him for trial. Mitchell was found guilty of kidnapping and sentenced to life in prison, despite his not guilty by reason of insanity plea.
“Effectively misleading psychopath”
Do you remember Brian David Mitchell and the Elizabeth Smart kidnapping?

11. FAMOUS INSANITY DEFENSE CASES
What was the verdict? You be the judge and then check your text to see what happened.
1977 In Michigan, Francine Hughes poured gasoline on and lit her abusive husband on fire
Verdict:
1978 David “Son of Sam” Berkowitz was a serial killer in New York City
1979 Kenneth Bianchi, one of the pair known as the Hillside Strangler who sexually assaulted and murdered women
Verdict:
1980 In December, Mark David Chapman murdered John Lennon
Verdict

12. FAMOUS INSANITY DEFENSE CASES
1992 Jeffrey Dahmer, a 31-year-old mass murderer in Milwaukee, was tried for the killings of 15 young men.
Verdict:
1994 On June 23, 1993, 24-year-old Lorena Bobbitt cut off her husband’s penis with a 12-inch kitchen knife while he slept.
2003 For three weeks in October 2002, John Allen Muhammad and Lee Boyd Malvo went on a sniping spree in the Washington, DC, area, shooting 10 people dead and wounding 3 others.
Verdict:
2006 On June 20, 2001, Andrea Yates, a 36-year-old woman, drowned each of her five children in the bathtub.

13. What Other Verdicts Are Available?
Over the past four decades, at least 20 states have added another verdict option
GUILTY BUT MENTALLY ILL
Some states allow still another kind of defense
GUILTY WITH DIMINISHED CAPACITY
Over the past few decades, another verdict has been added – GUILTY BUT MENTALLY ILL.
Defendants receiving this verdict are found mentally ill at the time of their crime, but their illness was not fully related to or responsible for the crime.
Some states allow for another defense – GUILTY WITH DIMINISHED CAPACITY.
A defendant’s mental dysfunction is viewed as an extenuating circumstance that should be considered.

14. What Are Sex Offender Statutes?
Since 1937, when Michigan passed the first “sex psychopath” law, many states have placed sex offenders in a special category
MENTALLY DISORDERED SEX OFFENDERS
People categorized this way are found guilty of a crime and judged to be responsible but are committed to a mental health facility instead of prison
Over the past two decades, most states have changed or abolished these laws
Difficulty for placement judgment
Racial bias
States are now less concerned about the rights and needs of sex offenders, given the growing number of sex crimes taking place; some have passed sexually violent predator laws that require prison and, in addition, involuntary treatment.

15. Criminal Commitment and Incompetence to Stand Trial
Regardless of their state of mind at the time of a crime, defendants may be judged to be MENTALLY INCOMPETENT to stand trial
Ensures that defendants understand the charges they are facing and can work with their lawyers to present an adequate defense
This standard of competence was specified by the U.S. Supreme Court in 1960
Dusky v. United States (1960)

16. Multicultural Issues: Race and Forensic Psychology
Psychologically disturbed people from racial minority groups are more likely than disturbed white Americans to be sent to prison, as opposed to mental health facilities.
Among defendants evaluated for competence to stand trial, those from racial minority groups are more likely than white American defendants to be referred for inpatient evaluations.
When nonwhite and white defendants are evaluated for competence to stand trial, the defendants from racial minority groups are more likely to be found incompetent to stand trial.
In New York State, 42 percent of all people ordered into involuntary outpatient commitment are African American, 34 percent are white American, and 21 percent are Hispanic American. In contrast, these three groups comprise, respectively, 17 percent, 61 percent, and 16 percent of New York’s general population.
Table 16-1

17. Criminal Commitment and Incompetence to Stand Trial
When the issue of incompetence is raised, the judge orders a psychological evaluation
Many more cases of CRIMINAL COMMITMENT result from decisions of mental incompetence than from verdicts of NGRI
Majority of criminals currently institutionalized for psychological treatment are convicted inmates
Their psychological problems have led prison officials to decide they need treatment
If the court decides that the defendant is incompetent, the person is assigned to a mental health facility until competent to stand trial.
Decades ago, most states required that mentally incompetent defendants be committed to maximum-security institutions.

18. How Do the Legislative and Judicial Systems Influence Mental Health Care?
Just as clinical science and practice have influenced the legal system AND the legal system has influenced clinical practice
Process of CIVIL COMMITMENT, which allows certain people to be forced into mental health treatment
Involuntary commitment of individuals who are considered to be in need of treatment and dangerous to themselves or others
May include suicidal or reckless patients
May include patients who put others at risk intentionally or unintentionally
Courts have developed the process of civil commitment, which allows certain people to be forced into mental health treatment.
The legal system, on behalf of the state, has taken on responsibility for protecting patients’ rights during treatment.
Every year in the United States, large numbers of people with mental disorders are involuntarily committed to treatment.
Typically they are committed to mental institutions but most states also have some form of outpatient civil commitment.
These laws have long caused controversy and debate.
Generally our legal system permits involuntary commitment of individuals who are considered to be in need of treatment and dangerous to themselves or others.
May include suicidal or reckless patients
May include patients who put others at risk intentionally or unintentionally
The state’s authority rests on its duties to protect the interests of the individual and of society.

19. Prison and Mental Health
According to studies conducted in several Western countries, psychological disorders are much more prevalent in prison populations than in the general population.
For example, schizophrenia is four times more common and personality disorders (particularly antisocial personality disorder) are five times more common among prisoners than among non-prisoners. (Information from: Andreoli et al., 2014; Butler et al., 2006; Fazel & Danesh, 2002.)
Figure 16-2

20. What Are the Procedures for Civil Commitment?
Civil commitment laws vary from state to state
Family members often begin the proceedings
Few guidelines have been offered by the Supreme Court
1979: Minimum standard of proof required:
Must be “clear and convincing” proof of illness and of meeting the state’s criteria for commitment
Civil commitment A legal process by which a person can be forced to undergo mental health treatment

21. Emergency Commitment
Many states give clinicians the right to certify certain patients as needing temporary commitment and medication
Requires the agreement of two physicians and/or mental health professionals
By tradition, these certifications often are referred to as “2PCs” (TWO-PHYSICIAN CERTIFICATES)
The length of stay is often limited to 3 days

22. Who Is Dangerous?
A judgment of “DANGEROUSNESS” is often required for involuntary civil commitment
Research suggests mental health professionals are very often wrong in making long-term predictions of violence
Short-term predictions of imminent violence can be accurate
Although approximately 90 percent of people with mental disorders are not violent or dangerous, studies now suggest at least a small relationship between severe mental disorders and violent behavior.
In the past, people with mental illnesses were less likely than others to commit violent or dangerous acts because of mass hospitalizations.
Since deinstitutionalization, there is a small relationship between severe mental disorders and violent behavior.

23. What Are the Problems with Civil Commitment?
Civil commitment has been criticized on several grounds
It is difficult to assess dangerousness
The legal definitions of “mental illness” and “dangerousness” are vague
Civil commitment has questionable therapeutic value
On the basis of these and other arguments, some clinicians argue that involuntary commitment should be abolished

24. Trends in Civil Commitment
The flexibility of involuntary commitment laws peaked in 1962
The Supreme Court ruled that imprisoning people who suffered from drug addictions might violate the Constitution’s ban on cruel and unusual punishment
As the public became aware of these issues, states passed stricter standards for commitment
Today, fewer people are institutionalized through civil commitment proceedings than in the past

25. Protecting Patients’ Rights
Over the past two decades, court decisions and state and federal laws have greatly expanded the rights of patients with mental disorders
RIGHT TO TREATMENT
RIGHT TO REFUSE TREATMENT

26. How Is the Right to Treatment Protected?
Several court rulings addressed this issue
1972: A federal court ruled that the state was constitutionally obligated to provide “adequate treatment” to all people who had been committed involuntarily
1975: The Supreme Court ruled that institutions must review case files periodically and that the state cannot continue to institutionalize against their will people who are not dangerous and are capable of surviving on their own or with willing help of responsible family members or friends
When people are committed to mental institutions and do not receive treatment, the institutions become prisons for the unconvicted.
In the late 1960s and 1970s, large mental institutions were just that.
Some patients and their attorneys began to demand that the state honor their right to treatment.
In 1986, Congress passed the Protection and Advocacy for Mentally Ill Individuals Act that sets up protection and advocacy systems in all states and U.S. territories.
A number of advocates are now suing federal and state agencies, demanding that they fulfill the promises of the community mental health movement.

27. How Is the Right to Refuse Treatment Protected?
During the past 25 years, the courts have also decided that patients, particularly those in institutions, have the right to refuse treatment
Most rulings center on biological treatments, including psychosurgery
In addition, some states have acknowledged a patient’s right to refuse ECT and/or psychotropic medications

28. Executing the Mentally Ill Where Do You Stand?
Charles Singleton, a man who killed a store clerk in Arkansas, was sentenced to death in 1979, and then developed schizophrenia at some point after the trial. Inasmuch as the United States does not allow executions if a person cannot understand why he or she is being executed, state officials wanted Singleton to take medications to clear up his psychosis.
After years of legal appeals, the U.S. Supreme Court ruled in 2003 that Singleton was by then taking medications voluntarily, and he was executed by lethal injection in 2004.

29. What Other Rights Do Patients Have?
Court decisions have protected other patient rights
Guaranteed at least a minimum wage
Right to aftercare and appropriate community residence after release
Right to receive treatment in the least restrictive facility available

30. The “Rights” Debate
While people with psychological disorders have civil rights that must be protected at all times, many clinicians express concern that patients’ rights rulings may unintentionally deprive these patients of opportunities for recovery
What do you think?
Despite legitimate concerns, it is important to remember that the clinical field has not always been effective in protecting patients’ rights.
Since clinicians themselves often disagree, it seems appropriate for patients, their advocates, and outside evaluators to play key roles in decision making.

31. In What Other Ways Do the Clinical and Legal Fields Interact?
During the past 25 years, their paths have crossed in four key areas
Malpractice suits
Professional boundaries
Jury selection
Psychological research of legal topics
EYEWITNESS TESTIMONY
Mental health and legal professionals may also influence each other’s work in other ways.
Malpractice suits
The number of malpractice suits against therapists has risen sharply in recent years.
These claims have addressed a number of different issues, including patient suicide, sexual activity with a patient, failure to obtain informed consent, negligent drug therapy, omission of drug therapy, improper termination of treatment, and wrongful commitment.
A malpractice suit, or fear of one, can have major effects on clinical decisions and practice, for better or for worse.
Professional boundaries
During the past several years the legislative and judicial systems have helped change the boundaries that separate one clinical profession from another.
These bodies have given more authority to psychologists and have blurred the lines between psychiatry and psychology.
1991 – The Department of Defense set up a training program for Army psychologists to gain prescription-writing privileges (previously the domain of psychiatrists only).
The success of the program prompted the APA to recommend that all psychologists be granted permission to take such training courses; two states now grant such privileges.
Jury selection
During the past 30 years, more and more lawyers have turned to clinicians for advice in conducting trials.
A new breed of clinical specialist – “jury specialists” – has evolved.
They advise lawyers about which jury candidates are likely to favor their side and which strategies are likely to win jurors’ support during trials.
However, it is not clear that a clinician’s advice is more valid than a lawyer’s instincts or that the judgments of either are particularly accurate.
Psychological research of legal topics
Psychologists have sometimes conducted studies and developed expertise on topics of great importance to the criminal justice system.
Two areas have gained particular attention:
Eyewitness testimony
Patterns of criminality

32. Psychological Research of Legal Topics
Eyewitness testimony
In criminal cases testimony by eyewitnesses is extremely influential
Research indicates that eyewitness testimony can be highly unreliable
Accuracy is heavily influenced by the method used in identification
Research indicates that eyewitness testimony can be highly unreliable.
The events are usually unexpected and fleeting.
Further, laboratory subjects can be fooled into misremembering information.
Witnesses who are “absolutely certain” may be no more correct in their recollections than those who are only “fairly sure.” Yet the degree of a witness’s confidence often influences whether jurors believe his or her testimony.

33. Psychological Research of Legal Topics
Patterns of criminality
The study of criminal behavior patterns and the practice of “profiling” has increased in recent years and has been the topic of an increasing number of media programs
However, it is not as revealing or influential as the media and the arts convey

34. So what do you think: Madness or badness?
Serial Murders: Madness or Badness?
Likely, but not always present, serial killer characteristics
Males: between 25 and 34 years of age; average to high intelligence, clean-cut, articulate, and manipulative
Severe personality disorders
Antisocial personality disorder; narcissistic thinking; sexual dysfunction and fantasy; general feelings of powerlessness; abusive background
So what do you think: Madness or badness?

35. What Ethical Principles Guide Mental Health Professionals?
The code of the American Psychological Association (APA)
Psychologists are permitted to offer advice
Psychologists may not conduct fraudulent research, plagiarize the work of others, or publish false data
Psychologists must acknowledge their limitations
Psychologists who make evaluations and testify in legal cases must base their assessments on sufficient information and substantiate their findings appropriately
Psychologists may not take advantage of clients and students, sexually or otherwise
Psychologists must follow the principle of confidentiality
Exceptions: a therapist in training to a supervisor, Tarasoff’s “duty to protect”

36. Mental Health, Business, and Economics
Collectively, psychological disorders are among the 10 leading categories of work-related disorders and injuries in the United States
The business world often turns to clinical professionals to help prevent and correct such problems
EMPLOYEE ASSISTANCE PROGRAMS
STRESS-REDUCTION OR PROBLEM-SOLVING SEMINARS
The legislative and judicial systems are not the only social institutions with which mental health professionals interact.
The business and economic fields are two other sectors that influence and are influenced by clinical practice and study.
EMPLOYEE ASSISTANCE PROGRAMS (EAPS) – Involve mental health services made available by a place of business, are run either by mental health professionals who work directly for a company or by outside mental health agencies
STRESS-REDUCTION AND PROBLEM-SOLVING SEMINARS – Includes workshops or group sessions in which mental health professionals teach employees techniques for coping and solving problems and for handling and reducing stress

37. The Economics of Mental Health
Governmental economic decisions may influence the clinical care of people with psychological disorders
Private insurance companies have significant effect on the way clinicians work
Managed care programs
Peer review systems
For example, financial concerns were of primary consideration in the deinstitutionalization movement.
Although government funding has risen for people with psychological disorders over the past five decades, that funding is insufficient.
The large economic role of private insurance companies has had a significant effect on the way clinicians go about their work.
Managed care programs and peer review systems have been implemented and criticized by many mental health professionals.
MANAGED CARE PROGRAM An insurance program in which the insurance company decides the cost, method, provider, and length of treatment
PEER REVIEW SYSTEM A system by which clinicians paid by an insurance company may periodically review a patient’s progress and recommend the continuation or termination of insurance benefits
Peer review systems have been implemented and criticized by many mental health professionals.
Caught in an economic spiral Group
home residents and mental health advocates rally at the legislative office building in Raleigh, NC, to protest a Medicaid payment law change.

38. Technology and Mental Health
Today’s dynamic technology influences the focus, tools, and research direction of the mental health field
New triggers and vehicles for the expression of abnormal behavior
Violent video games’ contribution to the development of antisocial behavior, and perhaps to the onset of conduct disorder (MMOGs)
Social networking’s impact on psychological dysfunctioning in certain cases
Around 3.1 billion people across the world currently use the Internet—310 million in North America alone. (IWS, 2015.)
It has become the primary medium through which people access all kinds of information.
Closely aligned with the Internet, cell phone use has expanded. There are currently 6.8 billion cell phone owners worldwide—90 percent of the world population. (Fernholz, 2014.)
Over 80 percent of all cell phone owners use them for texting, among other services—itself a relatively new form of technology. Examples: the Internet, cell phones, video games, and social networking
Given these changes and trends and their impact on the daily lives of most people, it’s not surprising that the focus, tools, and research direction of the mental health field have themselves expanded.
Our digital world provides new triggers and vehicles for the expression of abnormal behavior.
Example: individuals who grapple with impulse-control problems and/or paraphilias
Some clinicians believe that violent video games may contribute to the development of antisocial behavior, and perhaps to the onset of conduct disorder.
A number of clinicians also worry that social networking can contribute to psychological dysfunctioning in certain cases.

39. New Forms of Psychopathology
Research also indicates that today’s technology also is helping to produce new psychological disorders
INTERNET USE DISORDER is marked by excessive and dysfunctional levels of texting, tweeting, networking, Internet browsing
Similarly, the Internet has brought a new exhibitionistic feature to certain kinds of abnormal behavior, for example, posting videos of self-cutting

40. Cybertherapy
CYBERTHERAPY is growing as a treatment option by leaps and bounds
Examples include: Long-distance therapy using Skype, therapy offered by computer programs, treatment enhanced by video gamelike avatars, and Internet-based support groups
Unfortunately, this movement is not without its problems, including a wealth of misinformation and a lack of quality control

41. The Person Within the Profession
The actions of clinical researchers and practitioners
Influence and are influenced by other institutions
Are closely tied to their personal needs and goals

42. The Person Within the Profession
Surveys have found that as many as 84 percent of therapists have reported being in therapy themselves at least once
Same reasons as those of other clients, with emotional problems, depression, and anxiety topping the list
It is not clear why so many therapists report having psychological problems
Possible theories include: job stress, increased awareness of negative feelings, biased entry into the field itself
Mental health activities are affected by the personal needs, values, and goals of the human beings who provide the clinical services. These factors inevitably affect the choice, direction, and even quality of their work.