Legal Right & Ethical Concerns for the Exceptional

1. Legal Right & Ethical Concerns for the Exceptional Alvin E. House, Ph.D. Psychology 346 Spring 2008

2. Rights for individuals with disabilities • 1972 “Declaration on the Rights of Mentally Retarded Persons, General Assembly of the United Nations • “the mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings . . . “ • 1975 “Declaration on the Rights of Disabled Persons”, General Assembly of the United Nations • “inherent right to respect for their human dignity . . . The same civil . . . Rights as other human beings. . . .”

3. Normalization • Each person has their own needs and the right to live in the most appropriate [least restrictive] environment • “Normalization”--”making available to all mentally retarded people patterns of life and conditions of everyday living which are as close as possible to the norms and patterns of the mainstream of society” (Nirje, 1969) • Focus on normalization began in Scandinavia in the 1960s and was spread to the U.S. through the writings of Wolfensberger (1972) and Nirje (1969)

4. Normalization • Normalization served as a philosophical basis for deinstitutionalization • Contributed to movement toward community care for persons with mental retardation and individualized free and appropriate education programs for youth with special needs • Supported employment initiative

5. Competency • “Competency for the mentally retarded persona refers to competency to manage one’s own affairs, to physically care for one’s self, and to care for others (parenting).” (Harris, 1998, p. 564) • Basic legal competency • Ability to be a competent witness • Ability to stand trial as a person responsible for one’s own actions

6. Competency • Competency in what regard? • Legal • Parental • Consent • Contractual • Partial Competency • Guardianship • Designated payee

7. Competency to consent to sexual activity • “. . . It is important to recognize that individuals with mental retardation would not be held to different standards than those commonly applied to individuals within the general population.” (Morris et al., 1993, 264) • Criteria set for by several states (AZ, IL, IN, IO, KA, LO) • Understanding the nature of sexual conduct • Understanding possible consequences • Possessing the abilities to resist coercion & implement a choice

8. Parental Competency • The legal system has emphasized 3 skills • Expressing love and affection • Performing household tasks • Attending to child’s physical needs • Some courts have added a 4th skill • Stimulating the child intellectually

9. Parental Competency • The parent(s), child, and society all have an interest in maintaining the family unit • When termination of parental rights are considered, the most common determining standards are • Parental fitness standard--based on common law presumption that parents act in their child’s best interest • Child’s best interest standard--focuses on child’s needs

10. Legal Competency • Competency to stand trial • Ability to comprehend the nature and consequences of legal proceedings • Ability to assist legal counsel in preparing and carrying out one’s own defense • Competency to testify • A witness is not automatically disqualified because they are mentally retarded • Must understand they can be punished for not telling the truth • Must be capable of recall and reporting past events accurately

11. Criminal Liability • Mental retardation may be a mitigating circumstance that reduces an offender’s culpability • Reliability of confessions to a crime • Voluntary, knowing, intelligent waving of Miranda rights • Insanity defense • Culpability often refers to capacity to distinguish right from wrong • McNaghten rule: due to mental disease or defect, lacks knowledge of the nature and wrongfulness of the act--individual is not being held responsible

12. Capital Crimes • Supreme Court has found that mentally retarded individuals can not be given a death penalty • A previous ruling had found that mental retardation must be considered a mitigating circumstance in capital crimes • The American Association on Mental Retardation (AAMR) had adopted a position that individuals with mental retardation should not be sentence to death or executed, arguing: • No penological purpose • Disproportionate to the retarded person’s culpability • Do no consider degree of moral blameworthiness • Are cruel and unusual punishment

13. Rights of the Incompetent • developmentally disabled individuals adjudicated mentally incompetent are unable to exercise their rights; there for procedural safeguards are necessary to protect them • Preservation of autonomy despite incompetency a major challenge • Cannot voluntarily consent in regard to decision • Undergo or terminate life-sustaining treatment • Reproduce and give birth • Community placement versus institutionalization

14. Rights of the Incompetent • Two general approaches; • Best interest test: focuses on needs of the incompetent person • Substituted judgment test: court renders decision considering the decision the person might render if they were competent • Procedural safeguards • Appointment of guardian ad litem • Adversarial hearing: due process • Opportunity to be heard • Opportunity to question and cross-examine witnesses • Right to offer evidence • Limits on the role of the court

15. Rights of the Incompetent • Areas of contention • Sterilization/antilibidinal drugs/sexual expression • Treatment with psychoactive drugs • Right to refuse treatment • Use of “chemical restraint” [“emergency pharmacotherapy”] • Side effects • Issue of consent

16. Rights of the Incompetent • Consent: informed, voluntarily, & competent • Consent to treatment • Consent to take medication • Consent to release information • Competence requires understanding of the nature and consequences of the decision, and availability of relevant information to reach an informed and rational choice

17. References • Harris, J.C. (1998). Developmental Neuropsychiatry, Vol II: Assessment, diagnosis, and treatment of developmental disorders. New York: Oxford University Press. • Kennedy, C.H. (1999). Assessing competency to consent to sexual activity in the cognitively impaired population. Journal of Forensic Neuropsychology, 1, 17-33. • Morris, C.D., Niederbuhl, J.M., & Mahr, J.M. (1993). Determining the capability of individuals with mental retardation to give informed consent. American Journal on Mental Retardation, 98, 263-272.

18. References • MPDLR (1989). U.S. Supreme Court remands esecution of man with mental retardation. Medical and Physical Disability Law Reporter, 13, 334-338. • Nirje, B. (1969). A Scandinavian visitor looks at U.S. institutions. In W. Wolfensberger and R. Kugel (eds.), Changing Patterns in Residential Services for the Mentally Retarded. Washington, D.C.: President’s Committee on Mental Retardation. • Wolfensberger, W. (1972). The Principle of Normalization in Human Servcies. Toronto, Ontario: National Institution on Mental Retardation.