Chapter 14 Mental Health Services: Legal and Ethical Issues

Chapter 14
Mental Health Services: Legal and Ethical Issues

Mental Health and the Legal System: An Overview

• Mental Health and the Legal System

• Guided by ethical principles and state and federal laws

• Shifting Perspectives on Mental Health Law

• Liberal era (1960 to 1980) – Rights of persons with mental illness dominated

• Neoconservative era (1980 to present) – Emphasized limiting rights of mentally ill

• The Issues

• The nature of civil vs. criminal commitment

• Balancing ethical considerations vs. legal considerations

• The role of psychologists in legal matters

• Rights of patients and research subjects

• Practice standards and the changing face of mental health care

Civil Commitment: Overview, Criteria, and Oversight Authority

• Civil Commitment Laws

• Address legal declaration of mental illness

• Address when a person can be placed in a hospital or institution for treatment

• Such laws and what constitutes mental illness vary by state

• General Criteria for Civil Commitment

• Demonstrate that a person has a mental illness and needs treatment

• Show that the person is dangerous to self or others

• Establish a grave disability – Inability to care for self

• Governmental Authority Over Civil Commitment

• Police power – Protection of the health, welfare, and safety of society

• Parens patriae – State acts a surrogate parent

The Civil Commitment Process

• Initial Stages

• Person fails to seek help, but others feel that help is needed

• Petition is made to a judge on the behalf of the person

• Individual in question must be notified of the civil commitment process

• Subsequent Stages

• Involve normal legal proceedings in most cases

• Determination is made by a judge regarding whether to commit the person

The Concept of Mental Illness in Civil Commitment Proceedings

• Defining Mental Illness

• Is a legal concept, referring to severe thought or behavioral disturbances

• Not synonymous with a psychological disorder

• Definitions of mental illness vary by state

• Mental retardation and substance-related disorders often are excluded

• Dangerousness to Self or Others: Central to Commitment Proceedings

• Assessing dangerousness: The role of mental health professionals

• Knowns and unknowns about violence and mental illness

Problems with the Process of Civil Commitment

• Early Supreme Court Rulings: Restrictions Over Involuntary Commitment

• A nondangerous person cannot be committed

• Need for treatment alone is not enough

• Having a grave disability is insufficient

• Consequences of Supreme Court Rulings

• Criminalization of the mentally ill

• Increase in homelessness

• Deinstitutionalization – Closure of several large psychiatric hospitals

• Transinstitutionalization – Movement of mentally ill to community care

• More Liberal Changes in Civil Commitment Procedures Followed

Subsequent Modification to Civil Commitment Procedures

• Civil Commitment Criteria Were Broadened

• Involuntary commitment for dangerous and non-dangerous persons

• Involuntary commitment for persons in need of treatment

• National Alliance of the Mental Ill argued for further reforms

Criminal Commitment: An Overview

• Nature of Criminal Commitment

• Accused of committing a crime

• Detainment in a mental health facility for evaluation of fitness to stand trial

• Found guilty or not guilty by reason of insanity

The Insanity Defense

• Nature of the Insanity Defense Plea

• Legal statement by the accused of not guilty because of insanity at time of crime

• Results in defendant going to a treatment facility rather than a prison

• Diagnosis of a disorder is not the same as insanity

• Definitions of Insanity

• M’Naughten rule – Insanity defense originated with

this ruling; persons not responsible for their criminal actions if they “did not know what they were doing or did not know that what they were doing was wrong”

• Durham rule – More inclusive; unlawful act committed due to mental disease or defect; abandoned because of lack of conclusive evidence linking mental disorders and unlawful acts

• American Law Institute (ALI) Standard – Knowledge of right vs. wrong (M’Naughten), self-control, and diminished capacity (inability to formulate criminal intent)

Consequences of the Insanity Defense

• Public Misperceptions and Outrage

• John Hinckley Jr. found not guilty by reason of insanity (NGRI)

• 50% of states subsequently considered abolishing the insanity defense

• Public views – Insanity defense is a legal loophole

• Facts About the Insanity Defense

• Used in less than 1% of criminal cases

• Persons judged NGRI spend more time in mental hospitals than in jail

• Changes Regarding the Insanity Defense

• Insanity Defense Reform Act – Movement back to M’Naughten-like standards

• Guilty but mentally ill (GBMI) – Allows for treatment and punishment

Determination of Competence to Stand Trial

• Requirements for Competence

• Understanding of legal charges

• Ability to assist in one’s own defense

• Essential for trial or legal processes

• Burden of proof is on the defense

• Consequences of a Determination of Incompetence

• Loss of decision-making authority

• Results in commitment, but with limitations

Mental Health Professionals as Expert Witnesses

• The Expert Witness: Psychologists’ Role

• Person with specialized knowledge and expertise

• Evaluate imminent dangerousness (to a limited extent)

• Assist in making reliable DSM diagnoses

• Advise the court regarding psychological assessment and diagnosis

• Assess malingering (i.e., faking symptoms)

• Assist in competency determinations

Patient’s Rights: An Overview

• The Right to Treatment

• Mentally ill persons cannot be committed involuntarily without treatment

• Treatment includes active efforts to reduce symptoms and provide humane care

• The Right to the Least Restrictive Alternative

• Treatment within the least confining and limiting environment

• The Right to Refuse Treatment

• Often in cases involving medical or drug treatment

• Persons cannot be forced to become competent via taking antipsychotic medication

• The Right to Confidentiality vs. Duty to Warn

• Confidentiality – Protection of disclosure of personal information

• Tarasoff and the Duty to Warn – One of several limits on confidentiality

• Other limits of confidentiality:

• Mandated reports: child/elder/disabled adult abuse

• Risk of suicide

• Court-mandated treatment

• Third party payments

Research Participant Rights: An Overview

• The Right to be Informed About the Research

• Involves informed consent, not simply consent alone

• The Right to Privacy

• Right to be Treated with Respect and Dignity

• Right to be Protected from Physical and Mental Harm

• Right to Chose or to Refuse to Participate in Research Without Negative Consequences

• Right to Anonymity with Regard to Reporting of Study Findings

• Right to Safeguarding of Records

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

Summary of Ethical and Legal Issues in Mental Health Services

• Society Views and Laws About Mental Illness Change with Time

• Mental Illness Is a Legal Term, Not a Psychological Term

• Civil Commitment Is a Legal Processes Involving Involuntary Commitment

• Criminal Commitment Involves Criminal Behavior and Mental Illness

• Determination of competence, insanity, and criminal culpability

• Role of Mental Health Professionals in Legal Matters

• Rights of Patients, Research Subjects, and the Future of Mental Health Care