1. Law and Ethics in Abnormal Psychology
Chapter Sixteen
Law and Ethics in Abnormal Psychology
2001, Andrea Yates drowned all five of her children in the bathtub. During Yates's trial, the prosecution asked for the death penalty, but the defense contended that she was psychotic, had postpartum depression, was insane, and should not be held accountable for her actions. The jury, however, found her guilty. An appeals court subsequently overturned the verdict, and on July 26, 2006, another Texas jury found her not guilty by reason of insanity.
Naveed Haq, a Pakistani American, invaded the Jewish Federation of Greater Seattle, railing against Israel and the Iraq War. He fired at workers, killing one woman and wounding five. Naveed Haq, a Pakistani American, invaded the Jewish Federation of Greater Seattle, railing against Israel and the Iraq War. He fired at workers, killing one woman and wounding five. Haq was retried and convicted in 2009.

2. Law and Ethics in Abnormal Psychology
Psychologists:
Play a role in determining defendants’ state of mind in criminal actions
Participate in legal decisions and legal actions
Offer expert opinions on child custody, organic brain functioning, traumatic injury, suicide, deprogramming activities
American Psychological Association taken role of amicus curiae (friend of the court)

3. Criminal Commitment
Incarceration of an individual for having committed a crime
Criminal law recognizes that some people lack the ability to discern the ramifications of their actions because they are mentally disturbed
Although they may be guilty of a crime, their mental state at the time of the offense exempts them from legal responsibility

4. Criminal Commitment (cont’d.)
Figure 16-1 Legal Standards That Address the Mental State of Defendant

5. The Insanity Defense
Legal argument used by defendants who admit they committed a crime but plead not guilty because they were mentally disturbed at the time of the crime
“Faking it?”
Most defendant who plead NGRI have long history of mental illness
Those who fake it are seldom successful
In reality, less than 1 percent of defendants ever use an insanity defense and only 25 percent of NGRI defenses are successful.
Confessed Hillside Strangler Kenneth Bianchi, for example, attempted to fake mental illness as mitigation for his part in raping, torturing, and murdering a number of girls and young women in the late 1970s. Psychologist and hypnosis expert Dr. Martin Orne exposed his scheme as a fake, and Bianchi was found guilty of murder and sentenced to life in prison without parole.
As a rule, defendants found NGRI spend significantly more time in custody than those who are convicted. They often face a lifetime of postrelease judicial oversight. Further, the plea is infrequently used (less than 1 percent of cases) and seldom successful.

6. Insanity Defense: Legal Precedents
M’Naghten Rule (the “right-wrong test”):
A person can be acquitted of a crime if at the time of the act :
The defendant had such defective reasoning that they did not know what they were doing (nature of the act)
The defendant was unable to comprehend that the act was wrong (quality of the act)
Criticism:
Exclusively cognitive test - does not consider volition, emotion, or other mental activity.
In 1843, Daniel M'Naghten, a grossly disturbed woodcutter from Glasgow, Scotland, claimed that he was commanded by God to kill the English prime minister, Sir Robert Peel. He killed a lesser minister by mistake and was placed on trial, where it became obvious that M'Naghten was quite delusional.
The M'Naghten rule has come under tremendous criticism from some who regard it as being exclusively a cognitive test (knowledge of right or wrong), which does not consider volition, emotion, or other mental activity.

7. Insanity Defense: Legal Precedents (cont’d.)
Irresistible impulse test:
Defendant is not criminally responsible if he or she lacked the will power to control his or her behavior
Criticism:
What constitutes irresistible impulse as opposed to an unresisted impulse?
Durham standard (the products test):
Accused is not responsible if the unlawful act was the product of mental disease or defect
broadened the M'Naghten rule with the so-called products test
Criticism: Almost anything can cause anything
The intent of the ruling was to (a)give the greatest possible weight to expert evaluation and testimony and(b)allow mental health professionals to define mental illness.
Additional criticisms: Leaving the task of defining mental illness to mental health professionals often results in having to define mental illness in every case. In many situations, relying on psychiatric testimony serves only to confuse the issues, because both the prosecution and defense bring in psychiatric experts, who often present conflicting testimony ( Koocher & Keith-Spiegel, 2008).

8. Insanity Defense: Legal Precedents (cont’d.)
American Law Institute (ALI) model penal code:
Mental disease or defect impairs capacity to appreciate the criminality of conduct or to conform the conduct to the requirements of law
“Mental disease or defect” does not include abnormality manifested by repeated criminal or otherwise antisocial conduct

9. Insanity Defense: Legal Precedents (cont’d.)
Some jurisdictions incorporate “diminished capacity” into ALI standard:
As a result of mental disease or defect, a person may lack specific intent to commit offense
Although diminished capacity has been used primarily to guide the sentencing and disposition of the defendant, it is now introduced in the trial phase as well.
Dan White killed Mayor George Moscone and supervisor Harvey Milk on November 27,1978.
During the trial, his attorney used the now-famous “Twinkie defense” (White gorged himself on junk food such as Twinkies, chips, and soda) as a partial explanation for his client's actions. White's attorney attempted to convince the jury that the high sugar content of the junk food affected White's cognitive and emotional state and was partially to blame for his actions. White was convicted only of voluntary manslaughter and was sentenced to less than 8 years in jail. Of course, the citizens of San Francisco were outraged by the verdict and never forgave White. Facing constant public condemnation, he eventually committed suicide after his release.

10. Insanity Defense: Legal Precedents (cont’d.)
Insanity Defense Reform Act of 1984 based the definition of insanity totally on the individual's ability to understand what he or she did.
Resulted from outcry following John Hinckley, Jr.’s John Hinckley, Jr. (center), was charged with the attempted murder of President Ronald Reagan. The Hinckley verdict also led to alternative pleas such as:
Guilty, but mentally ill:
Attempt to separate mental illness from insanity and to hold people responsible for their acts
Jurors may convict individuals and hold them responsible for their crimes, but also ensure they are treated for their mental illness

11. Competency to Stand Trial
Defendant has a factual and rational understanding of the proceedings and can rationally consult with counsel in presenting his or her own defense
Refers to defendant’s mental state at time of psychiatric examination
Jackson v. Indiana
Due Process: legal checks and balances guaranteed to everyone
On June 5, 2002, 14-year-old Elizabeth Smart was kidnapped at knifepoint from her Salt Lake City, Utah, home by Brian David Mitchell
Mitchell, a former street preacher, was arrested for the crime, but claimed that God had commanded him to abduct Smart, to enter into a celestial marriage, and to form a religious society of younger females. Mitchell's trial did not begin for almost 9 years. In three separate court hearings, Mitchell was judged “mentally incapable of assisting in his own defense.
Such a miscarriage of justice was the focus of a U.S. Supreme Court ruling in the 1972 case of Jackson v. Indiana. In that case, a man with severe mental retardation and brain damage who could neither hear nor speak was charged with robbery but was determined incompetent to stand trial. He was committed indefinitely. The U.S. Supreme Court ruled that a defendant cannot be confined indefinitely solely on the grounds of incompetency.

12. Civil Commitment Parens patriae: Civil commitment:
The government has the authority to commit disturbed persons for their own best interest
Civil commitment:
Involuntary confinement of a person judged to be a danger to self or others, even though the person has not committed a crime
May be viewed as protective confinement
BL (“Bag Lady”) in the area of downtown Oakland, California: Although she never physically assaulted anyone, her menacing behavior frightened many pedestrians, customers, and shopkeepers. Finally, her sister and several merchants requested that the city take action to commit her to a mental institution. Controversy: She hadn’t committed any crime (although she did urinate and defecate on the street and yelled profanities at people).

13. Civil Commitment (cont’d.)
Potentially negative consequences:
Lifelong social stigma, major interruption and loss of control of one’s life, being dependent on others, loss of self-esteem and self concept
Possible loss or restriction of civil liberties

14. Civil Commitment (cont’d.)
Figure 16-2 Factors in the Civil Commitment of a Nonconsenting Person

15. Criteria for Commitment
Clear and imminent danger to self or others
Inability to care for oneself or lack of social network to provide such care
Most civil commitments are based primarily on this criterion.
Inability to make responsible decisions about appropriate treatment or hospitalization
Unmanageable state of fright or panic
Dangerousness:
Potential to harm oneself or others

16. Criteria for Commitment (cont’d.)
Increasingly, the courts have tightened up civil commitment procedures and have begun to rely more on a determination of whether the person presents a danger to the self or others.
Assessing dangerousness:
The rarer something is, the more difficult it is to predict
Violence seems to be a function of both context and a person’s characteristics
The best predictor of dangerousness is probably past criminal conduct or a history of violence or aggression. Such a record, however, is often ruled irrelevant or inadmissible.
The definition of dangerousness is unclear
Approximately 90 percent of people with mental disorders are neither violent nor dangerous.
On April 16, 2007, college student Seung-Hui Cho used two semiautomatic handguns on the Virginia Tech campus to kill 27 students and 5 faculty members before committing suicide with a shot to his head. The incident was the deadliest mass shooting in modern U.S. history. Although predicting dangerousness is difficult, there was considerable evidence to indicate that Cho was potentially dangerous: He was involved in three stalking incidents, professors reported that he was menacing and a mental health professional believed he was a danger to others.

17. Procedures in Civil Commitment
Rationale for instituting procedures:
Prevents harm to person or others
Provides appropriate treatment and care
Ensures due process of law
In most cases individual is persuaded to agree to voluntary commitment
Involuntary commitment is used when the individual does not consent to hospitalization

18. Procedures in Civil Commitment (cont’d.)
Formal civil commitment:
The court is petitioned to examine the person
Judge appoints two professionals to examine the person
In a formal hearing, the examiners and others testify about the person’s mental state and potential dangerousness
If treatment is recommended, finite period of time must be determined
6 months to 1 year are common. Some states, however, have indefinite durations subject to periodic review and assessment.

19. Procedures in Civil Commitment (cont’d.)
Protection against involuntary commitment
A mentally ill person may be confined without a jury trial and without having committed a crime, based on what might happen
Treatment or punishment?
incarceration—both criminal and civil—cannot occur on the basis of potential danger alone
Opponents argue:
Civil commitment is for the benefit of those initiating commitment, not for the individual
Jeffrey Dahmer tortured animals as a small boy and was arrested in 1988 for molesting a child. Even though his father suspected that he was dangerous, Dahmer was released. Few serial killers or mass murderers willingly share their deviant sexual or asocial fantasies
Despite an attempt to use the insanity plea, Dahmer was found guilty in 1994 and imprisoned. Another inmate subsequently killed him.

20. Serial Killers
Compulsion to kill has been associated with “morbid prognostic signs”:
breaking and entering for nonmonetary purposes
unprovoked assaults and mistreatment of women
a fetish for female undergarments and destruction of them
hatred, contempt, or fear of women
violence against animals, especially cats
sexual identity confusion
a “violent and primitive fantasy life and
sexual inhibitions and preoccupation with rigid standards of morality
Few serial killers are psychotic, and psychoses do not appear to be the cause of their compulsion to kill.
Almost all, however, entertain violent sexual fantasies and have experienced traumatic sex at a young age
Most serial killers seem to exhibit little remorse for their victims, have little incentive to change, and seem to lack a value system.

21. Rights of Mental Patients
Some courts have ruled that commitment for any purpose constitutes a major deprivation of liberty that requires due process protection
Dixon v. Weinberger (1975)
Least restrictive environment:
Right to least restrictive alternative to freedom that is appropriate to a person’s condition

22. Right to Treatment Wyatt v. Stickney (1972)
Mental patients who are involuntarily committed have a right to receive therapy that would improve their emotional state
Rouse v. Cameron (1966)
Right to treatment is constitutional right; failure to provide treatment not justified by lack of resources
O’Connor v. Donaldson (1975)
State cannot constitutionally confine nondangerous person who can care for self
Wyatt v. Stickney (1972)
specified staff–patient ratios, therapeutic environmental conditions, and professional consensus about appropriate treatment.
The court also made it clear that mental patients could not be forced to work
Wyatt v. Stickney also established that mental patients could not be forced to engage in work-related activities aimed at maintaining the institution in which they lived. This practice, widely used in institutions, was declared unconstitutional. Moreover, patients who volunteered to perform tasks had to be paid at least the minimum wage to do them instead of merely being given token allowances or special privileges.

23. Right to Refuse Treatment
Many forms of treatment may have long-term side effects and forced treatment may nullify potentially beneficial effects
Sell v. United States:
Strict limits on ability of government to forcibly medicate mentally ill defendants to make the competent to stand trial
Such actions must be in “Best interest of defendant”
Least intrusive forms of treatment
May involve mainstreaming
Brian David Mitchell, the man who kidnapped Elizabeth Smart, refused antipsychotic drugs over a period of 9 years.
It was only after a judge believed Mitchell was manipulating the system that he was judged competent in 2009.

24. Deinstitutionalization
Shift responsibility for care of mental patients from large central institutions to agencies within local communities:
Large institutions mainly provided mainly custodial care
Patient rights and mainstreaming (integrating mental patients as soon as possible back into the community)
Insufficient funds for state hospitals
It appears that millions of mentally ill individuals have become homeless
It is estimated that 30 to 70 percent of the homeless population have a mental disorder and people who are homeless have significantly poorer psychological adjustment and higher arrests and conviction records

25. Deinstitutionalization (cont’d.)
Critics:
States have relinquished responsibility
Mentally ill are not receiving treatment
Low quality care in residences, and many are homeless
Community’s lack of preparation and resources to care for mentally ill

26. Deinstitutionalization (cont’d.)
Solution:
Probably provisions for more and better community-based treatment facilities and alternatives
Programs providing permanent housing, special care, and concerned community treatment can reduce homelessness and improve well-being
Few of these programs

27. The Therapist-Client Relationship
Confidentiality:
Ethical standard (obligation of therapist) that protects clients from disclosure of information without their consent
Privileged communication:
Therapist’s legal obligation to protect a client’s privacy and to prevent the disclosure of confidential communications without a client’s permission
Client is the holder of the privilege

28. The Therapist-Client Relationship (cont’d.)
Privileged communication exemptions:
Civil or criminal commitment or competency to stand trial
Mental condition is introduced as a claim or defense in a civil action
Client is younger than 16 or is a dependent elderly person who was the victim of a crime
Client presents danger to self or others

29. The Duty to Warn
Based on Tarasoff v. University of California Regents 1976):
Obligates mental health professionals to break confidentiality when clients pose clear and imminent danger to other person
Must warn intended victim
protective privilege ends where public peril begins.
During the course of treatment, Poddar informed his therapist that he intended to purchase a gun and kill Tarasoff.
The psychologist breached the confidentiality of the professional relationship by informing the campus police.The police detained Poddar briefly but freed him because he agreed to stay away from Tarasoff. On October 27, 1969, Poddar went to Tarasoff's home and killed her, first wounding her with a gun and then stabbing her repeatedly with a knife. In the subsequent lawsuit filed by Tarasoff's family, the California Supreme Court made a landmark ruling in 1976 that established what is popularly known as the duty to warn; the therapist should have warned not only the police but the intended victim as well.

30. The Duty to Warn (cont’d.)
Therapists may be liable when they:
Fail to diagnose/predict dangerousness
Fail to warn potential victims
Fail to commit dangerous individuals
Prematurely discharge dangerous clients from a hospital

31. The Duty to Warn (cont’d.)
Criticisms of duty to warn principle:
Therapist becomes double agent
Therapist have ethical and legal obligation to their clients, but also have legal obligation to society
Hostile clients are less likely to act out or become violent when they vent their thoughts

32. The Duty to Warn (cont’d.)
Past crimes and the requirement to inform:
Law is unclear
Prevailing consensus is that mental health professionals are not legally mandated to breach confidentiality in these cases

33. The Duty to Warn (cont’d.)
The “family educational rights and privacy act” prevents colleges and universities from disclosing personal information about students, even to their parents
Colleges treat students as adults, so telling parents would infantilize students
Students may be less inclined to share information if they knew rights were not confidential
Out of a sample of 162 doctoral-level psychologists, mostly full-time psychotherapists, confessions of the following crimes were heard by the indicated number of respondents: Murder: 13 percent Sexual assault or rape: 33 percent Physical assault: 69 percent. So, psychologists are likely to hear confessions of past acts. When are they obligated to inform or detain?
Elizabeth Shin, a 19-year-old sophomore at the Massachusetts Institute of Technology (MIT), died on April 14, 2000, after she was believed to have set fire to herself. The Shins contended that MIT knew that their daughter had made suicide attempts, cut herself frequently, and had depression, but failed to inform them of her deteriorating mental state.

34. Sexual Relationships with Clients
Professional malpractice lawsuit can be brought under certain conditions:
The plaintiff must have been involved in a professional therapeutic relationship
Negligent care of client
Demonstrable harm must have occurred
Cause-effect relationship between the negligence and harm

35. Sexual Relationships with Clients (cont’d.)
Many reasons to separate therapist’s personal and professional lives:
Therapists need to be objective and removed from client to be therapeutic
Therapist in a relationship with client:
May be less confrontational
May fulfill his/her needs at the expense of the client
May exploit the client

36. Sexual Relationships with Clients (cont’d.)
Sexual misconduct is one of the most serious ethical violations
Is explicitly condemned and forbidden by American Psychological Association (APA)
1 to 17 percent of professionals have had some form of sexual contact with their clients.
actual incidence may be much higher majority are between a male therapist and a female client
the reverse has also been reported, as have acts in which the therapist and patient are of the same sex

37. Cultural Competence and the Mental Health Profession
Prevailing concepts of mental health and mental disorders are culture-bound
Theories of therapy are based on values specific to middle-class, white, individualistic, ethnocentric population
Concerns that services offered to culturally different clients are frequently antagonistic or inappropriate to life experiences

38. Cultural Competence in Mental Health Profession (cont’d.)
APA ethical principles:
Need adequate training and expertise in multicultural psychology
“Guidelines on multicultural education, training, research, practice, and organizational change for psychologists:”
Service providers need to become aware of how own culture, life experiences, attitudes, values, and biases has influenced them
Importance of cultural and environmental factors in diagnosis and treatment

39. Cultural Competence in Mental Health Profession (cont’d.)
Cultural competence requires therapists to attain three goals:
To become aware of and deal with biases, stereotypes, and assumptions
To become aware of the culturally different client’s values and worldview
To develop appropriate intervention strategies that take into account the social, cultural, historical, and environmental influences on culturally different clients