chapter 18: mental health & the law

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


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


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


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


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”)


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?


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)


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


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”


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


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


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?


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”


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 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 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


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


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


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


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


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


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


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 . . .”


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


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”


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


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


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)


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


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

chapter 18: mental health & the law

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