chapter 18: mental health & the law
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Chapter 18: Mental Health & the Law. Fall, 2012 Dr. Mary L. Flett, Instructor. Overview. Legal definition of insanity is not the same as psychological definition of mental illness. Jeffrey Dahmer, killed 17 people, chopped them up and ate them. Considered sane. - PowerPoint PPT PresentationTRANSCRIPT
Chapter 18: Mental Health & the Law
Fall, 2012
Dr. Mary L. Flett, Instructor
Overview
Legal definition of insanity is not the same as psychological definition of mental illness.
Jeffrey Dahmer, killed 17 people, chopped them up and ate them. Considered sane.
Lee Malvo (17), “brainwashed” by John Muhammad – known as the “Beltway Snipers”. Considered sane.
Cut of her husband’s penis after he allegedly raped her. Found not guilty by reason of insanity. No known mental illness identified.
Andrea Yates systematically drown each of her five children. Diagnosed as bipolar with psychotic features, she was tried as a sane person, and convicted of murder
Overview Controversies that underscore the different
goals and values of the law and mental health The “insanity defense” Confinement of “mentally ill” Legal interventions in families (child and elder
abuse; custody issues) Legal responsibilities of mental health
professionals Negligence Confidentiality
Conflicts between Mental Health & the Law
Expert Witnesses Specialists allowed to testify about specific
matters of opinion within their area of expertise Testimony is often conflicting
Defense has an expert witness Prosecution has an expert witness
Testimony must be based on established science (Daubert v. Merrell Down Pharmaceuticals)
Ultimately, tho, it is the judge and jury (if there is one) that determines guilt or innocence
Conflicts between Mental Health & the Law
Expert Witnesses Procedures and goals are different between
lawyers and mental health experts Lawyers are sworn to provide the best defense for their client;
Mental health professionals provide “objective” data Expert witnesses are cross-examined not to disprove their
expertise, but to challenge or support the lawyer’s case
Conflicts between Mental Health & the Law
Free Will vs. Determinism Legal position is that human behavior is the
product of Free Will Free will is the capacity to make choices freely and act on
them It makes people responsible for their actions Criminal responsibility (legal concept) holds that people are
accountable for their actions
Conflicts between Mental Health & the Law
Free Will vs. Determinism Mental health position is that human behavior is
determined by biological, psychological & social forces These factors can be measured and, perhaps, controlled
Conflicts between Mental Health & the Law
Insanity Defense Free will and determinism clash In law, insanity is an exception to criminal
responsibility If you are insane, you are not acting out of free
will Therefore, you are not accountable for your
actions (“Not guilty by reason of insanity”)
Conflicts between Mental Health & the Law
Insanity Defense Unresolved questions
Are people with mental disorders responsible for their actions? Is human behavior a product of free will? What is the function of science in the courtroom?
Conflicts between Mental Health & the Law
Rights & Responsibilities Rights and responsibilities go hand in hand in the
law When responsibilities are lost, rights are lost;
responsibilities gained, rights are gained Thomas Szasz argued insanity defense should be abolished Argued for broader recognition of human dignity and individual
rights for mentally ill Szasz’ views are considered extreme by many; but not all.
Mental Illness & Criminal Responsibility
Insanity Defense Roots traced to ancient Greek and Roman law Codified in English common law Underlying principal is whether the defendant
lacked the capacity to distinguish “good from evil” and/or “right from wrong” M’Naghten Test – at the time of the crime, does a mental
disease or defect prevent the defendant from knowing the wrongfulness of his/her actions? If yes, then “Guilty”
If no, then, “Not guilty by reason of insanity” (NGRI)
Mental Illness & Criminal Responsibility
Irresistible Impulse and Product Test Irresistible Impulse Test (Parsons v. State)
Individual who is unable to control their actions because of a mental disease can be found NGRI
If the person cannot control their behavior (free will), then the law can have no effect on deterring crime
Product Test (Durham v. United States) Individual cannot be found guilty if criminal act was a product
of mental disease or defect. Neither “product” or “mental disease” was defined Problems with disorders such as APD Durham overturned in 1972; product test dropped
Mental Illness & Criminal Responsibility
Legislative Actions Model legislation enacted at state level in 1950s
adopting rule to clarify both M’Naughten and Irresistible Impulse - -substantial capacity
Rule revised after John Hinkley shot Pres. Regan and was found NGRI. Insanity Defense Reform Act (1984) “. . .unable to appreciate
the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.”
Not all 50 states adopted this rule Montana, Idaho, Utah, Kansas, Nevada abolished the insanity
defense
Mental Illness & Criminal Responsibility Guilty but Mentally Ill
Designed as a compromise Sentences same as any criminal, but court may
order treatment for mental disorder as well Burden of Proof
“Beyond a reasonable doubt” standard In criminal cases, Prosecution must prove
standard Insanity Defense Reform Act changed burden of
proof to Defense, and changed standard to “preponderance of the evidence”
Mental Illness & Criminal Responsibility Defining “mental disease or defect”
Legal definition is generally more restrictive than DSM Some disorders not even in DSM (Battered Women’s
Syndrome) are used as a defense Some suggest it should be restricted to schizophrenia, mood
disorders, cognitive disorders (but excluding substance abuse) APA definition: “those severely abnormal mental
conditions that grossly and demonstrably impair a person’s perception or understanding of reality that are not attributable primarily to the voluntary ingestion of alcohol or other psychoactive substances”
Mental Illness & Criminal Responsibility
Use of insanity defense Only used in ~ 1% of trials Roughly 25% are found NGRI Over 90% of acquittals result from plea bargains Sentencing of those found NGRI
Some incarcerated in mental institutions Time served is about same regardless of where served Supreme Court ruled that longer confinements may be
permitted, because treatment, not punishment is goal of verdict
Mental Illness & Criminal Responsibility
Competence to stand trial Competence is the defendant’s ability to
understand the legal proceedings and participate in his/her own defense. Refers to current mental state, not state of mind at time crime
was committed Even a psychotic individual may possess sufficient
understanding to be deemed competent Does not refer to defendant’s willingness to participate; just
ability to understand Only those suffering from severe emotional disorders are likely
to be found incompetent
Mental Illness & Criminal Responsibility
Competence to stand trial Rule of expert witness is different
Evaluation focuses on specific behaviors and capacities; not diagnoses
Arises at several different points in case At time of arrest; understand Miranda rights At time of sentencing At time of execution Current issues: does inmate have right to refuse treatment for
sole purpose of making him/her competent to be executed?
Mental Illness & Criminal Responsibility
Competence to stand trial If found incompetent, legal proceedings
suspended until can be understood by defendant Result is confinement for much longer periods of
time than if had been convicted Do not always receive “treatment”
Mental Illness & Criminal Responsibility
Sentencing and Mental Health Sexual predators
History of and potential for sexual violence may lead to harsher sentencing
Sexual predator laws allow individuals to be confined indefinitely after sentence is finished based on dangerousness to others
Issues of fairness are raised; recidivism rates are much higher for burglars than pedophiles
Typically confined offenders do not receive treatment
Mental Illness & Criminal Responsibility
Mental Health and Civil Law Involuntary commitment to mental hospital Patient’s rights to treatment while hospitalized;
least restrictive environment right to refuse treatments
Deinstitutionalization
Mental Illness & Criminal Responsibility Mental Hospitals in the US
Moral treatment movement (19th Century) Provide respite and humanistic care to mentally disturbed Napa State Movement was well-intentioned, but not effective
Institutions remained (Early 20th Century) Patients warehoused Not addressed until WWII, when conscientious objectors
brought horrors forward Deinstitutionalization movement (1980s)
Discharged individuals to community Failure of communities to sufficiently fund programs
Mental Health Hospitals
Mental Illness & Criminal Responsibility
Mental Hospitals in the US Ironically, today more mentally ill in prison than in
hospitals Mental health courts an attempt to correct this problem
Libertarian vs. Paternalistic Views of involuntary treatment Keeping people safe from themselves and protecting others
(paternalistic) Preventative detention vs. civil commitment
Mental Illness & Criminal Responsibility
Civil Commitment Parens Patriae – government has responsibility to
care for weaker members Civil commitment justified when individual is danger to self, or
unable to care for him/herself (grave disability) – protecting the individual
Civil commitment justified when individual is a danger to others or property – protecting the public
Grounds & Procedures Emergency procedures (Cal Civil Code Sec 5150)
72 hour hold Formal commitment can only be ordered by a court
Mental Illness & Criminal Responsibility
Civil Commitment Grounds & Procedures
Danger to self, others, or grave disability First two fairly common; grave disability quite a high standard
May result in abuse
Predicting Dangerousness and Suicidal Risk False positives unfairly restrict someone’s rights False negatives puts lives at stake Prediction of violence is poor; professionals will make
mistakes
Mental Illness & Criminal Responsibility
Civil Commitment Predicting Dangerousness
Public greatly overestimates risk of mentally ill person harming someone; vast majority are not violent
False positive rate is about 67% (wrong about 2/3rds of the time!)
Better than chance, however! Utilization of base rates is a better predictor
Assessing Suicide Risk Similar issues; high false-positive rates Commitment when suicidal is typically only done when there is
an immanent likelihood of self harm
Mental Illness & Criminal Responsibility
Civil Commitment Predicting Dangerousness
Public greatly overestimates risk of mentally ill person harming someone; vast majority are not violent
False positive rate is about 67% (wrong about 2/3rds of the time!)
Better than chance, however! Utilization of base rates is a better predictor
Assessing Suicide Risk Similar issues; high false-positive rates Commitment when suicidal is typically only done when there is
an immanent likelihood of self harm
Mental Illness & Criminal Responsibility
Civil Commitment Abuses of Civil Commitment
Police have historically been the enforcers of commitment NY law at one time commissioned “assessors” to lock up all
“lunatics” for a minimum of 6 months Husbands used to have the right to commit wives Parents can still commit minors with agreement of an
independent fact finder (usually a psychiatrist) Minors not entitled to hearing before commitment Legitimate concerns exist that judges understand not just the law
but family dynamics, and psychological and environmental influences
Mental Illness & Criminal Responsibility
Sentencing and Mental Health Judges required to consider mental health before
sentencing May result in a less harsh sentence (e.g., death penalty) “Mitigation evaluations” required in all death penalty cases
Mental retardation Mitigating factor that makes death penalty unconstitutional “Mental retardation” definition controversy
Cruel and Unusual Punishment Anyone under 18; even where no mental illness or defect is
present
Mental Illness & Criminal Responsibility
Rights of Mental Patients Right to treatment (Wyatt v. Stickney)
Hospital was a mess; class action suit filed on behalf of one patient (Ricky Wyatt) against Alabama Mental Health Commissioner (Dr. Stickney)
Suit argued patients had a right to expect treatment, and hospital failed to provide same
Lasting outcome of trial includes Right to a humane psychological and physical environment Qualified staff in number sufficient to administer adequate
treatment Individualized treatment plans
Mental Illness & Criminal Responsibility
Rights of Mental Patients Limitations on commitment standards (O’Connor
v. Donaldson) Kenneth Donaldson confined for 15 years to Florida mental
hospital; originally as danger to self He sued, stating he was no longer danger to self and was not
receiving treatment Court found in his favor – “State cannot Constitutionally
confine a non-dangerous individual who is capable of surviving safely in freedom . . .”
Mental Illness & Criminal Responsibility
Rights of Mental Patients Right to treatment in least restrictive alternate
environment (Lake v. Cameron) Catherine Lake committed to hospital because of her
tendency to wander away from home (danger to self) Mrs. Lake agreed that she needed treatment, but not in a
mental hospital Court agreed to alternative setting that protected Mrs. Lake
and was in a less restrictive environment But what happens if there isn’t a less restrictive environment?
Funding of community resources is needed, but has not been legislated
Mental Illness & Criminal Responsibility
Rights of Mental Patients Filings under ADA (Olmstead v. L.C.)
Two women (one with mental illness and the other with mental retardation) who were in a State mental hospital sued the Georgia Commissioner of Human Resources, to be moved to a least restrictive setting
State countered that no such facility existed Court held that states must demonstrate efforts to find
appropriate community placements
Mental Illness & Criminal Responsibility Rights of Mental Patients
Right to refuse treatment Particularly psycho-active medications Some courts have held that patients have this right
If this is true, then involuntary hospitalization (a treatment) can be “refused” – a paradox!
Before providing treatment, informed consent required Patient be informed about procedures and risks and benefits Patient must “understand” the information & freely consent Patient must be “competent” to give consent
Guardian of the person may be appointed, if person is incompetent
Mental Illness & Criminal Responsibility Rights of Mental Patients
Mandated community treatment “Outpatient commitment” Not done in California; done in other states
Deinstitutionalization Movement Many can be better cared for in community Community Mental Health Centers Act (1963)
People were released before communities could set up systems
CMHCs have been woefully underfunded since inception Result is mentally ill are on the streets, in nursing homes, or
jails
Mental Health & Family Law
Issues of family law (divorce, custody, spousal and child abuse, foster care, adoption, juvenile delinquency) can also involve mental illness
Different historical roots for both family law and family treatment
Family law cases tried in different courts Juvenile Courts Domestic Relations/Family Courts
Judges are supposed to look to the law to define the values of “child’s best interest”
Mental Health & Family Law
Child Custody Disputes Involves physical and legal custody
Where child will live How parents will make decisions about the child’s welfare
Sole custody (one parent retains both physical and legal rights) Joint custody (physical and legal rights shared by both parents)
Majority of custody decisions agreed to out of court Mental health professionals frequently make
recommendations to attorneys, provide expert testimony in court, or act as mediators
Mental Health & Family Law
Child Custody Disputes Involves physical and legal custody
Where child will live How parents will make decisions about the child’s welfare
Sole custody (one parent retains both physical and legal rights) Joint custody (physical and legal rights shared by both parents)
Majority of custody decisions agreed to out of court Mental health professionals frequently make
recommendations to attorneys, provide expert testimony in court, or act as mediators
Mental Health & Family Law
Child Custody Disputes Expert witnesses
Lucrative but precarious endeavor Typically adversarial, not “in the best interests of the child”
Mediation Adopts a cooperative approach to dispute resolution Supposed to be non-adversarial Reduces custody hearings, helps reach decisions more
quickly and amicably
Mental Health & Family Law
Child Abuse Accidental or intentional infliction of harm to a
child First efforts to protect children did not start until 1875; animals
had more rights! 1962, Henry Kempe wrote about “battered child snydrome”
Resulted in legislation requiring physicians to report suspected child abuse; laws subsequently expanded to include mandated reporters (school teachers, mental health professions, others with regular contact with children)
Mental Health & Family Law
Child Abuse Four forms
Physical intentional use of physically painful and harmful actions corporal punishment
Sexual Sexual contact between an adult and a child
Neglect Placing children at risk for serious physical or psychological harm
by failing to provide basic and expected care Most prevalent
Psychological
Mental Health & Family Law
Child Abuse Psychological
Munchausen by proxy is where parent feigns, exaggerates, or induces illness in child
Thought to be rare, but is increasing in reporting Foster care and removal from home
When abuse is extreme, child may be removed from home Termination of parental rights Family reunification Foster care is a poor but necessary temporary solution to
problem of child abuse
Professional Responsibilities & the Law Ethical obligations to meet standards of
professional practice and uphold laws Negligence and Malpractice
Negligence occurs when a professional fails to perform in a manner consistent with level of skill exercised by other professionals in the same field
Malpractice is where negligence results in harm to the patient
If found guilty of malpractice, professional is subject to disciplinary action through licensing boards, courts, and professional organizations
Professional Responsibilities & the Law
Informed consent issues Multiple approaches and treatments available Patient needs to know risks and benefits, but may
not be in position to determine whether care is effective
Patients may desire a particular treatment that the professional does not provide, is not skilled at, or is, in and of itself, not effective Refer out to qualified provider Educate patient about efficacy
Professional Responsibilities & the Law
Confidentiality Ethical obligation to not reveal private
communications Needed for good therapeutic work Needed for trust
Exceptions to confidentiality Reporting of child abuse When clients are a danger to others
Tarasoff and the duty to warn Court order