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. Cut of her husband’s penis after he allegedly raped her. Found not guilty by reason of insanity. No known mental illness identified. Lee Malvo (17), “brainwashed” by John Muhammad – known as the “Beltway Snipers”. Considered sane. 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

Conflicts between Mental Health & the Law • 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

Conflicts between Mental Health & the Law • 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

Conflicts between Mental Health & the Law • 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

Conflicts between Mental Health & the Law • 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”)

Conflicts between Mental Health & the Law • 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?

Conflicts between Mental Health & the Law • 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)

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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”

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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?

Mental Illness & Criminal Responsibility • 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”

Mental Illness & Criminal Responsibility • 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 Illness & Criminal Responsibility • 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 Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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 . . .”

Mental Illness & Criminal Responsibility • 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

Mental Illness & Criminal Responsibility • 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”

Mental Health & Family Law • 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

Mental Health & Family Law • 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

Mental Health & Family Law • 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)

Mental Health & Family Law • 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

Mental Health & Family Law • 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