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Chapter 14

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Department
Psychology
Course
PSY346H5
Professor
Dior
Semester
Winter

Description
MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES I. Civil Commitment A. Each state has civil commitment laws that detail when a person can be legally declared to have a mental illness and be placed in a hospital for treatment. 1. Liberal era, from 1960 to 1980: commitment to individual rights and fairness. During this period, the rights of people with mental illness dominated. 2. Neoconservative era, from 1980 to present: a reaction to the liberal reforms of the 1960s and 1970s characterized by an emphasis on law and order. During this era, the rights of people with mental illness were limited to provide greater protection of society. B. Civil commitment laws in the US date back to the late 19 th century. Before that time, people with mental illness were cared for by family members, the community at large, or were left to care for themselves. Large public hospitals ushered in an alarming trend; namely, commitment of people for reasons that were unrelated to mental illness (e.g., holding different political views). C. Criteria for civil commitment have evolved. 1. Historically, states permitted civil commitment when either of the following conditions were met. a. The person was shown to have a mental illness and a need for treatment. b. The person was deemed dangerous to self or others. c. The person was unable to care for him or herself, a situation referred to as a grave disability. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 2 2. The government justifies its right to act against the wishes of the individual under two types of authority. a. Police power authority, the government takes responsibility for protecting public health, safety, and welfare and can create laws and regulations to ensure such protection. b. Parens patriae, the state applies power when citizens are unlikely to act in their own best interest used to commit individuals with severe mental illness when it is believed they might be harmed for not being able to secure basic life necessities, or because they fail to recognize the need for treatment. 3. Civil commitment process a. Specifics of this process vary by state, but it usually begins with a petition by a relative or mental health professional to a judge. This process is similar to legal proceedings the person under question has all the rights and protections provided by the law. must be notified that civil commitment proceedings are taking place, must be present during the trial, must have representation by an attorney, can request witnesses and independent evaluation. b. In emergency situations involving clear immediate danger, a short-term commitment can be made without formal proceedings required of civil commitment. Certification of danger is usually made by family or the police. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 3 D. Mental illness is a legal concept, meaning severe emotional or thought disturbances that negatively affect an individual’s health and safety. Each state has its own definition of mental illness, and the term mental illness is not synonymous with psychological disorder. Many states exclude mental retardation or substance-related disorders from the definition of mental illness. 1. Assessment of dangerousness is a critical and controversial feature of the civil commitment process. An important issue is whether persons with mental illness are more dangerous or prone to violent behavior then the general population. a. In general, persons with hallucinations and delusions are not at an increased risk for violence but are more likely to have a higher number of arrests. b. Research also suggests that mental health professionals can identify groups of people who are at greater risk than the general population for being violent (e.g., having a previous history of violence) and can so advise the court. What cannot be done is to predict with certainty whether a particular person will or will not become violent. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 4 E. Problems with the process of civil commitment, particularly with regard to ambiguity and subjectivity, have resulted in several legal developments with economic and social consequences. 1. The Supreme Court stated in 1957, in the case of O’Connor v. Donaldson, that a state cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family and friends. Similarly, in 1979, in the case of Addington v. Texas, the Supreme Court stated that more than just a promise of improving one’s quality of life is required to commit someone involuntarily. Needing treatment or having a grave disability was not sufficient to commit someone with a mental illness involuntarily. The effect of this later decision was to limit substantially the government’s ability to commit persons unless they were dangerous. 2. Tighter restrictions on involuntary commitment in the 1970s and 1980s led to severely mentally ill persons living in the community w/o needed mental health services and their behavior often resulted in problems with the police. Criminalization of the mentally ill became a concern as the justice system was not prepared to care for such individuals. The following trends also emerged during this time: a. Number of homeless increased dramatically. About 2.3 to 3.5 million persons in the US are homeless, 25% of these have a previous history of hospitalization for mental health problems, 30% are considered severely mentally ill. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 5 b. Deinstitutionalization The goal of providing alternative community care has not been attained. Instead transinstitutionalization (i.e., the movement of people with severe mental illness from large psychiatric hospitals to nursing homes or other group residences, including jails and prisons) occurred. Deinstitutionalization is largely considered a failure. c. The perception that civil commitment restrictions and deinstitutionalization caused homelessness led to changes in commitment procedures. F. Changes with regard to commitment procedures resulted from a culmination of factors (e.g., lack of success with deinstitutionalization, the rise of homelessness, and criminalization of people with severe mental illness). 1. Rulings such as O’Connor v. Donaldson and Addington v. Texas argued that mental illness and dangerousness should be criteria for involuntary commitment. However, concerns about homelessness and criminalization led to calls for a return to broader civil commitment procedures that would permit commitment in cases of dangerousness, but also for individuals who were not dangerous but in need of treatment and for those with grave disability. 2. The National Alliance for the Mentally Ill (NAMI) argued for legal reform to make involuntary commitment easier, several states in the late 1970s and early 1980s changed their civil commitment laws in an attempt to address such concerns. Hospitals began to fill due to longer stays, repeated admissions, and acceptance of only involuntary admissions. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 6 II. Criminal Commitment A. Criminal commitment is the process by which people are detained in a mental health facility for assessment of fitness to stand trial because they have been accused of committing a crime or if they have been found not guilty of a crime by reason of insanity. B. With respect to the insanity defense, the law recognizes that people are not responsible for their behavior under certain circumstances and that punishment would therefore be unfair. Current views of criminal commitment have been shaped by a case recorded over 150 years ago in England involving Daniel M'Naghten. 1. The M’Naghten rule reflects the decision of the English court that a person is not responsible for their criminal behavior if they do not know what they are doing, or if they do not know that what they are doing is wrong. The insanity defense originated with this ruling, and this ruling was used for more than 100 years to determine culpability when a person’s mental state was in question. 2. In more recent times, other standards have been introduced to modify the M'Naghten rule because some viewed reliance of a person’s knowledge of right versus wrong as too limiting. Modifications were designed to account for one's entire range of functioning when determining responsibility for behavior. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 7 a. The Durham rule, initiated in 1954 in the case of Durham v. United States, broadened the criteria for responsibility from knowledge of right versus wrong to include the presence of a mental disease or defect. This was discarded, however, because mental health professionals lacked the expertise to reliably assess whether one's mental illness caused criminal behavior. Though the Durham rule is no longer used, its effect was to cause reexamination of the criteria used in the insanity defense. b. American Law Institute (ALI) criteria were established in 1962. ALI reaffirmed the importance of distinguishing behavior of people with and without mental illness. ALI concluded that people are not considered responsible for their criminal behavior if, because of their mental illness, they could not recognize the inappropriateness of their criminal behavior or control it. The ALI test stipulates that a person must either be unable to distinguish right from wrong (as set forth by M’Naghten) or be incapable of self-control to be shielded from legal consequences. Also included in these writings were provisions for diminished capacity, or the idea that one's ability to understand the nature of his/her behavior and criminal intent (mens rea) could be lessened by mental illness. Criminal intent requires proof of the physical act (actus rea) and the mental state (mens rea) of the person committing the act. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 8 3. Court rulings though the 1960s and 1970s on criminal responsibility parallel that of civil commitment. The focus was on the needs of people with mental illness who also broke the law and to provide mental health treatment instead of punishment. Use of insanity or diminished capacity in criminal cases alarmed the public. a. The case that prompted the strongest outrage against the insanity defense and calls for its abolition was that of John W. Hinckley, Jr. who attempted to assassinate President Ronald Regan. Hinckley was judged not guilty by reason of insanity (NGRI) using the ALI standard. b. The public overestimates how often the insanity defense is used, how often the defense is successful, how often those acquitted with the insanity defense are freed, length of confinement. The insanity defense is used in less than 1% of criminal cases, and persons judged NGRI spend more time in a hospital than they would have in jail. 4. Major changes were made in criteria for the insanity defense after the John Hinckley verdict. a. Congress passed the Insanity Defense Reform Act in 1984, which made use of the insanity defense more difficult by moving toward M'Naghten-like definitions. MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 9 b. Another attempt to reform the insanity plea has been to replace "not guilty by reason of insanity" to "guilty but mentally ill" (GBMI). Persons found GBMI are not sent to prison initially but are evaluated. Thereafter, if such individuals recover from their mental illness, they are then sent to prison. The latter verdict allows for treatment and subsequent punishment. c. The second version of GBMI is even harsher for the mentally ill offender. Convicted individuals are imprisoned, and the prison authorities may provide mental health services if they are available. The GBMI verdict in such cases is simply a declaration by the jury that the person was mentally ill at the time the crime was committed, and therefore is not
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