© cengage learning 2016 law and ethics in abnormal psychology 17

© Cengage Learning 2016 © Cengage Learning 2016

Law and Ethics in Abnormal Psychology

17

© Cengage Learning 2016

• Some roles of psychologists in the legal system– Psychological evaluation in child protection

matters

– Evaluation for child custody in divorce proceedings

– Civil commitment determination

– Protecting client rights

– Profiling criminals

The Intersection of Psychology and the Law


• Assessing dangerousness

• Filing amicus briefs

• Aiding jury selection

• Determining sanity or insanity

• Providing testimony in malpractice suits

• Determining competency to stand trial

• Determining repressed, recovered, or false memories

Additional Roles and Activities of Psychologists in the Legal System


• Incarceration of an individual for having committed a crime

• Criminal law– Some people lack the ability to assist in their

own defense or 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

Criminal Commitment


• Refers to a defendant’s mental state at the time of post-arrest psychiatric evaluation

• Requirements to stand trial by federal law– Defendant must have a factual and rational

understanding of the proceedings

– Defendant must be able to rationally consult with counsel in presenting his or her own defense

• Defendant cannot be confined indefinitely solely on the grounds of incompetency

Competency to Stand Trial


Legal Standards that Address the Mental State of the Defendant


• Legal argument used by defendants– Admit they committed a crime

– Plead not guilty because they were not of sound mind at the time the crime was committed

• Legal tests of insanity– The “right-wrong” test

– The irresistible impulse test

Legal Precedents Regarding the Insanity Defense


• Person can be acquitted if it can be shown that 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

M’Naghten Rule (“Right-Wrong 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?

• Durham standard (the products test)– Accused is not responsible if the unlawful act

was the product of mental disease or defect

Irresistible Impulse Test


• Guidelines established in 1962

• Mental disease or defect– Impairs capacity to appreciate the criminality

of conduct• Or to conform conduct to the requirements of law

– Does not include abnormality manifested by repeated criminal or otherwise antisocial conduct

Guidelines from the American Law Institute (ALI) Model Penal Code


• Absence of specific intent to commit offense– As a result of mental impairment

• Used primarily to guide sentencing and disposition of defendants

• Sometimes introduced in the trial phase

The Law of Diminished Capacity


• Insanity Defense Reform Act of 1984– Bases definition of insanity totally on the

individual’s ability to understand what he or she did

• Some states adopted alternative pleas– Culpable and mentally disabled

– Mentally disabled, but neither culpable nor innocent

– Guilty, but mentally ill

Insanity Defense Reform


• Insanity defense mostly used by defendants who have a long history of mental illness

• Determination of guilt can be complicated– Factor: severity of the defendant’s illness

• Deliberate delays– “Feigning” insanity rarely successful

• Past hospitalizations and medical diagnoses usually present

Contemporary Views on the Insanity Defense


• Parens patriae (“father of the country”)– Government’s authority to commit disturbed

individuals 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

Civil Commitment


• Major interruption in a person’s life

• Loss of self-esteem and self concept

• Dependency on others

• Possible loss or restriction of civil liberties

Negative Consequences of Civil Commitment


• Criteria vary by state– Clear and imminent danger to self or others

– Inability to care for oneself or lack of social network to provide such care

– Inability to make responsible decisions about appropriate treatment or hospitalization

– Unmanageable state of fright or panic

Criteria for Commitment


• Key factors– The rarer something is, the more difficult it is

to predict

– Violence is a function of both context and a person’s characteristics

– The best predictor of dangerousness is past criminal conduct or history of violence or aggression

– The definition of dangerousness is unclear

Assessing Dangerousness


• Involuntary confinement rationale– Prevents harm to person or others

– Provides appropriate treatment and care

– Ensures due process of law

• Involuntary commitment is used when the individual refuses hospitalization

• Judge appoints two physicians to examine the individual

Procedures in Civil Commitment


• Formal hearing takes place– Examiners and others testify about the

person’s mental state and potential danger

– The judge determines whether the person must enter treatment

– Commitment is usually for a defined length of time

• Six months to one year

• Indefinite subject to periodic review/assessment

Procedures in Civil Commitment (cont’d.)


• Due process procedures important– Ensure commitment does not violate a

person’s civil rights

• Individual accused of a crime– Considered innocent until proven guilty in a

court of law

• Criminal justice system will not incarcerate people because they might harm someone– Civil commitment is based on possible future

harm

Protection against Involuntary Commitment


• Addington v. Texas (1979)– Clear and convincing evidence that person is

mentally ill and potentially dangerous

• Dixon v. Weinberger (1975)– Least restrictive environment

• Right to least restrictive alternative to freedom that is appropriate to a person’s condition

Rights of Mental Patients


• Those involuntarily committed have a right to receive therapy to 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

Right to Treatment


• Many forms of treatment may have long-term side effects– Forced treatment may nullify potentially

beneficial effects

• Rennie v. Klein / Rogers v. Okin – People have a constitutional right to refuse

treatment (e.g., psychotropic medications) and to be given due process

• Least intrusive forms of treatment– Psychotherapy considered least intrusive

Right to Refuse Treatment


• Trend toward deinstitutionalization– Influences access to treatment

– Shifts care from large institutions to local agencies

– Mental hospital population has dropped 75 percent since the 1960s and 1970s

– Concept of mainstreaming

– State hospitals inadequately staffed and underfunded

Deinstitutionalization


• States have relinquished responsibility

• Mentally ill are not receiving treatment and often live on the streets– Thousands are now homeless

• Estimate: 30 to 70 percent of the homeless have a mental disorder

• Communities lack preparation and resources to care for mentally ill

Criticisms of Deinstitutionalization


• Right to die movement– Medical advances have increasingly

lengthened the dying process

• Physician faces civil or criminal lawsuit in many states– Particularly if patient lacks advance directive

• Suicide considered both a sin and an illegal act– Question: do people have the right to commit

suicide?

Moral, Ethical, and Legal Issues Surrounding Suicide


• Confidentiality – Ethical standard 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

Ethical Guidelines for Mental Health Professionals


• Civil or criminal commitment or competency to stand trial

• Client introduces mental condition as a claim or defense in a civil action

• Clients younger than 16 or dependent elderly person– When therapist believes individual has been

the victim of a crime

• Client presents danger to self or others

Exemptions from Privileged Communication


• Based on Tarasoff ruling – Obligates mental health professionals to

break confidentiality when clients pose clear and imminent danger to other person

– Must warn intended victim

• Criticisms– Therapist placed in role of a double agent

– The act of warning could escalate events

The Duty to Warn


Duty to Warn


• 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

• Undergraduates have more mental health needs than ever before

Family Educational Rights and Privacy Act


• Ethical code– Sexual intimacies with clients prohibited for a

minimum of two years after termination of therapy

• Importance of separating and creating boundaries between professional and personal lives– Therapists need to be objective

Sexual Relationships with Clients


• Prevailing concepts of mental health and mental disorders are culture-bound– Therapy approaches based on highly

individualistic values of middle- to upper-class European Americans

• ASA guidelines adopted in 2003– Emphasize importance of culturally-sensitive

work with racial and ethnic minorities

– Recognize cultural factors in diagnosis

Cultural Competence and the Mental Health Profession


• Becoming aware of and deal with biases, stereotypes, and assumptions

• Becoming aware of the values and worldviews of culturally different clients

• Developing appropriate intervention strategies– Considering social, cultural, historical, and

environmental factors that influence clients from diverse cultures

Cultural Competence (cont’d.)


• What are the criteria used to judge insanity, and what is the difference between being insane and being incompetent to stand trial?

• Under what conditions can a person be involuntarily committed to a mental institution?

• What rights do mental patients have with respect to treatment and care?

Review


• Are there situations in which suicide should be an option?

• What legal and ethical issues guide treatment practices?

Review (cont’d.)

© cengage learning 2016 law and ethics in abnormal psychology 17

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