Chapter 14 Mental Health Services: Legal and Ethical Issues

1. Chapter 14Mental Health Services: Legal and Ethical Issues

2. 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

3. 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

4. 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

5. 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 (DSM) • 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

6. 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

7. 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

8. 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

9. 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 • Durham rule – More inclusive, involving mental disease or defect • ALI Standard – Knowledge of right vs. wrong, self-control, and diminished capacity

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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