Decisions about people's mental health have important legal ramifications
People who are judged insane may not be legally responsible for
their crime
People who are judged insane may be relieved of many constitutional
rights
Mental health law has been changing at a rapid pace
Psychological Disturbance and Criminal Law
Many social norms are not just standards of behavior but legal
requirements
Abnormal behavior may also be illegal behavior
Insanity Defense (mental state at the time of offense)
Law assumes humans freely choose their actions
A guilty verdict refers to a judgment of fact while a moral judgment
means that person is morally punished and should be punished for it
Some people commit crimes not out of free choice but because mental
disturbance deprives them of free choice
In an insanity defense the defendant admits to committing
crime but pleads not guilty and is not morally responsible because
of mental disturbance
Person claims to be innocent in moral terms
Designed to protect mentally disturbed from penalties given
to mentally sound
MSO: mental state at the time of offense
Legal Tests of Insanity (NGRI, Irresistible Impulse, Volitional)
First important ruling was on the so-called irresistible-impulse
test in 1834 by an Ohio court
Defendants are acquitted if they could not resist the impulse
to do wrong because of mental illness
Difficult to distinguish between resistible and irresistible
impulses
Second important test was M'Naghten ruling handed down
in 1843 by a British court
Case involved defendant claiming he had been commanded by
God to kill English prime minister
Court ruled in M'Naghten's acquittal that defendants are legally
insane and not criminally responsible if by disease of the mind
and consequent impairment of reason, they meet one of two criteria
Did not know what they were doing
Did not know that what they were doing was wrong
Critics suggest that cognitive activity cannot be separated
from emotion or from any other mental activity; legal scholars
suggest that mind is not undifferentiated blob
Test serves purpose of excusing truly excusable and preserving
moral authority of law
The third test is Durham test
Test states defendant is not criminally responsible if unlawful
act was product of mental disease or mental defect
Forces jury to rely on expert testimony
Defendants are supposed to be tried by peers not by mental
health professionals
Most recent test is American Law Institute's (ALI) Model Penal
Code of 1962
Person is not responsible if at time of conduct person lacks
substantial capacity either to appreciate criminality of conduct
or to conform conduct to requirements of law
Mental disease or defect does not include abnormality manifested
only by repeated criminal or otherwise antisocial conduct
Code incorporates irresistible-impulse criterion, M'Naghten
criterion, and Durham criterion
Test can be applied without expert knowledge
ALI test adopted by many states
A New Verdict: Guilty but Mentally Ill (GBMI)
Many defendants may escape responsibility for their crimes
Case often cited is that of John Hinckley after 1982 assassination
attempt on President Reagan
Trial focused on whether he had committed the crime and
whether he was sane at the time
Defense witnesses portrayed Hinckley as suffering from
schizophrenia and other mental problems
Prosecution witnesses argued that Hinckley made conscious
choice to shoot Reagan and had no compelling drive to do so
Hinckley was found not guilty by reason of insanity
Case led to consideration of verdict of guilty but mentally
ill
Guilty but mentally ill is intermediate between guilty and
not guilty by reason of insanity
Defendant convicted would serve time in penal system and receive
psychological treatment
Michigan first state to adopt guilty but mentally ill verdict
in 1975
New verdict has not reduced number of insanity acquittals
and some legal scholars question it
Insanity Reform Act of 1984
Procedural Aspects of the Insanity Defense
Prosecution must prove beyond reasonable doubt all elements
of a criminal offense, including the physical act and requisite
mental state
Before Hinckley verdict, states placed burden on prosecution
to prove sanity after defense presented evidence suggesting insanity
Federal rules change to place burden of proving insanity on
defendant, and many states have followed
Has reduced number of insanity acquittals
Most insanity acquittals involved people with serious
mental illnesses
Prior to 1970s, defendants acquitted by reason of insanity
were confined to mental hospitals
After 1970s, acquittals no longer followed automatically
by commitment
Long-term hospitalization permitted only under standards
of ordinary civil commitment
In Jones v. United States (1983), U.S. Supreme Court
ruled that it is permissible to commit insanity acquittees automatically
Acquittees are hospitalized until proven either no longer
mentally ill or no longer dangerous
Acquittees could be hospitalized for longer than they
could have been imprisoned, had they been convicted
Most states have tightened up post-acquittal procedures to
make release more difficult
Criticism of the Insanity Defense
Insanity defense poses practical and moral problems
To rule on person's sanity, jury must make subjective judgment
that is difficult to make and is made retrospectively
Jury must rely on testimony of psychological professionals
who often make diametrically opposed diagnoses
Experts called by same side often contradict one another
Court must make legal judgment, not scientific judgment
Jury is empowered to do so, not the mental health professional
Dr. Thomas Szasz argues that insanity defense is difficult
for jury since insanity does not exist
Mental illness is a myth perpetuated by an arrogant profession
All behavior is of a purposeful and responsible nature
To label behavior insane is to deny the behavior any
meaning and to deny that there is conflict between the individual
and society
Suggests courts do not judge other people's intentions
but instead judges them on their behavior
Those who plead insane often end up in worse situation than
if convicted of their crimes
People who are found not guilty by reason of insanity
usually not set free
Often committed to mental hospitals and kept there until
judged not dangerous
Many people acquitted by reason of insanity are given
indeterminate sentences, sentences with no limit
Three states have abolished insanity defense
Insanity defense is much less important than other issues
linking law and psychology but receives great deal of public attention
Insanity defense used in less than 1% of felony cases
Successful in less than one-quarter of cases in which
it is raised
Competency to Stand Trial (CST)
In order to stand trial, defendant must understand nature of proceedings
against them and be able to assist counsel in their own defense
If defendant does not meet requirements, trial is delayed, and
person is sent to mental health facility until competent
Incompetency to stand trial is different from legal insanity
Insanity defense refers to defendant's mental state at time
of crime
Competency to stand trial refers to defendant's mental state
at time of trial
Person who asserts insanity defense may be competent to stand
trial; rule of competence to stand trial often applied loosely
Consequences of incompetency to stand trial can be significant
May be confined to hospital for years since no means to restore
competence
U.S. Supreme Court rule in Jackson v. Indiana (1972)
ruled that if person is not likely to become competent to stand
trial after determining if person is likely to be competent in
foreseeable future, person must be released or committed using
state's ordinary civil commitment procedures
There is catch-22 regarding antipsychotic medication that
allows defendant to fulfill competency requirement
Drugs may allow person to be tried if they are lucid
enough
U.S. Supreme Court (1992) ruled in Riggins v. Nevada
that people being tried for a crime could not be forced
to take psychotropic drugs unless trial court specifically
found it necessary to a fair trial
Civil Commitment
In civil commitment person has been committed not because he/she
was charged with crimebut because the state has determined that
he/she was disturbed enough to require hospitalization
About 55% of admissions to public mental hospitals are on an involuntary
basis
Procedures for the Commitment of a Person
Involuntary commitment to mental hospital is deprivation of liberty
Should persons faced with involuntary civil commitment have same
rights as defendant in criminal trial
A jury trial
Assistance of counsel
Right not to be compelled to incriminate themselves
Requirement that guilt be proved beyond a reasonable doubt
The Right to a Jury Trial
Formal judicial hearing before commitment required
Some states allow for a jury at hearing, other states leave
decision to judge
Reasons not to include jury include expense, time-consuming,
not in best interest of person whose condition is debated
Reason to include jury includes best protection against oppression
It is unlikely that Supreme Court will require jury trials
in commitment cases
The Right to the Assistance of Legal Counsel
Persons facing involuntary commitment are provided with lawyers
to protect their rights
Lawyers do not have clear role
Should lawyers act as advocates for clients' wishes
Should lawyers act as guardians pursuing clients' best
interests
Most lawyers take position to argue for clients' best
interests that may well be in opposition to clients' wishes
The Right Against Self-Incrimination
In criminal trials, defendants have right to remain silent,
and that silence cannot be used against them
Some argue that people facing involuntary commitment should
have same protection
Others argue that silence may be symptom of mental disturbance,
and it would be inappropriate to exclude it from evidence
The Legal Standard of Proof
Degree of certainty is called standard of proof
Beyond-a-reasonable-doubt standard is very difficult, 90-95%
certainty
In most civil cases, the standard of proof is a preponderance
of evidence, at least 51% certainty
In medical diagnoses, a lower standard of proof is used, 5-10%
certainty
The standard of proof in involuntary commitment based on seriousness
of two possible errors
False positive, or an unjustified commitment
False negative, or failure to commit when commitment
is justified and necessary
In criminal trial, a false positive is far more serious error
than a false negative
In civil proceedings, false positive is considered as serious
as false negative
In medical diagnosis, false negative is an extremely serious
mistake
When commitment is for good of society, criminal standard
of proof should be used
When commitment is for good of the patient, medical standard
of proof should be used
Critics argue that civil commitment is not the same as medical
diagnoses
So-called good-of-the-patient commitments are often undertaken
more for sake of others
Diagnosis to commit cannot be disproved, deprives patient
of liberty, stigmatizes patient, and does not necessarily
lead to treatment
No matter what reason for commitment, the beyond-a-reasonable-doubt
standard should be used
U.S. Supreme Court ruling in Addington v. Texas
(1979) adopted clear and convincing evidence as proper
standard for commitment hearings
Provides intermediate standard of proof
Corresponds to about 75% certainty, higher than ordinary
civil standard but lower than the criminal one
Standards for Commitment
Until early 1970s mental illness and need for treatment were
sufficient grounds for involuntary commitment in many states
Throughout 1970s reform was changing laws to require evidence
not just of mental illness but also of dangerousness to self and others
as grounds
The Definition of Dangerousness
Various courts and legislatures have taken different positions
Some states consider a threat of harm to property sufficient
for commitment
The Determination of Dangerousness
Determining dangerousness is difficult and involves prediction
of future behavior, which may include rare events
Murder is a statistically rare event, probably less than
1%; standard of proof may not be accepted by society
There are other factors to consider in determination
of dangerousness that encourage mental health professionals
to err in direction of overpredicting dangerousness
Studies of predictions of dangerousness have yielded
more false positive than false negatives
Because behavior is often situation-specific, predictions
of real-world behavior based on institutional behavior have
turned out to have poor validity
It is difficult to determine validity of predictions
that are based on patient's prior real-world behavior and
interviews
Some experts question tying commitment criteria to predictions
of dangerousness
The "Thank-You" Proposition
The "thank you" proposition refers to involuntary commitment
when person refuses treatment on grossly irrational grounds
After treatment, person will be grateful that wishes
were disregarded
Large portion of involuntary patients ultimately agree
that they needed the treatment that was forced on them
Stresses patient's welfare
Expert Testimony in Civil Commitment
i. Expert testimony is called for
Some legal scholars argue that courts rely too much on
opinions of mental health professionals
Moral and legal questions should not be asked of mental
health professionals
Making Commitment Easier
In 1980s several states amended laws to make commitments
easier
Research reveals few long-term effects of changes
The Case Against Involuntary Commitment
Critics argue that people who commit criminal acts should
be dealt with by the criminal justice system
The criminal justice system would provide greater procedural
safeguards
Widespread practice of plea bargaining often negates
legal safeguards
Modern commitment statutes often limit indeterminate
sentences
Patients' Rights
The Right to Treatment
Since 1960s courts have suggested that involuntary mental patients
have constitutional right to treatment
The case of Wyatt v. Stickney (1972), spelled out right
to treatment
Violates due process to deny people their liberty on grounds
that they needed treatment and then to provide no treatment
Must provide individualized treatment program for each patient
Must provide skilled staff in sufficient numbers to administer
such treatment
Must provide human psychological and physical environment
The case of Wyatt v. Stickney has influenced mental
health procedures in many states
U.S. Supreme Court ruled in O'Connor v. Donaldson (1975)
that a finding of mental illness cannot alone justify commitment in
simple custodial confinement
In the case of Youngberg v. Romeo (1982), the U.S. Supreme
Court found that involuntarily committed people have constitutional
right to conditions of reasonable care and safety and reasonable non-restrictive
environment and required training
The Right to Refuse Treatment
In the case of Washington v. Harper (1990), the U.S. Supreme
Court ruled that prison's policy regarding necessity of medication
should be made by doctors, not judges, and was constitutional
Lower courts usually take a more limited view of the authority
of doctors
The "thank you" proposition assumes that treatment will be
effective and will not have harmful side effects
State statutes and regulations on right to refuse treatment vary
considerably
General rule is that involuntary patients may be required
to undergo "routine" treatment
More controversial forms of treatment are regulated more closely
and require consent from patient or next of kin, or a court order
The Right to a Humane Environment
The case of Wyatt v. Stickney affirmed right to humane
environment
There are several requirements of a human environment
Wyatt case declared work requirements unconstitutional; patients
may voluntarily do work, but must be paid at least minimum wage
Behavior Therapy and Patient's Rights
Guarantee of patient rights may conflict with behavior therapy,
which is proven to be most effective therapy with long-term institutionalized
patients
The reinforcers used in token economy are same that court decisions
have affirmed are absolute rights
Aversive techniques now carefully restricted; electric shock allowable
only in extraordinary circumstances
There have been several notorious cases in which patients were
abused in programs masquerading as behavioral aversion therapy
Use of punishment to terrify mental patients into cooperating
with rules
Courts are extremely suspicious about behavioral techniques
in general
Behavior therapy focuses of decisions regarding patient rights
Techniques relatively new and are under close scrutiny
Behavior therapy is highly specific and concrete
Behavior therapy may cause patients' distress
Limiting behavior therapy may work against patients' best interest
Superior effectiveness of behavior therapy may eventually encourage
courts to ease some restrictions
Ethics and the Mental Health Profession
Confidentiality in Psychotherapy
Protection from disclosure unless specialized circumstances suggest
otherwise, e.g., danger to self, others, "Tarasoff" situation, child
abuse or spouse abuse, vocalized statement of violence, threats, subpoena,
etc.
Trust and confidentiality between therapist and patient/client
Privileged communication with treating clinician, doctor, analyst,
or counselor
Mental health professionals can declare abnormality in form of
the DSM-IV-TR (2000) and prior DSM (I, II, III, III-R,
IV) editions from 1952-1994
Deciding abnormality includes deciding who and what needs changing
Mental health professionals have the ability and can determine
whether mentally disturbed people should be institutionalized or released
from an institution
B. Informed Consent in Psychotherapy
Consumer movement makes demands on mental health profession
Informed consent requires sharing of information
Alternative treatments need to be discussed
Multiple and Exploitative Relationships in Psychotherapy
Questions around ethical issues surface with consideration regarding
inappropriate "dual" relationships
Conflict of interest in treatment relationship
Position of authority that the treating therapist holds has significant
influence on and over patient/client.
The therapist must always exercise scrutiny and objectivity in
his/her behavior and use careful judgment during treatment and in
the professional relationship situation.
