Psychotherapy Notes under HIPAA—Tarasoff Provision

1. Psychotherapy Notes under HIPAA—Tarasoff Provision A covered entity may use or disclose psychotherapy notes without an individual’s authorization… to avert a serious and imminent threat to public health or safety, or for the lawful activities of a coroner or medical examiner or as required by law. BUT see Pre-emption provisions

2. Tarasoff • What should we take away from the lesson of the Tarasoff case? • Questionable analogies from public health precedents • Problems of prediction remain • Negative effects of deputizing MH professionals • Medicalization of social problems by pretending there is a scientific solution

3. Tarasoff • Know the state law • Distinguish between Tarasoff I and II • Know other statutory duties of MHPs

4. Recent Research • Monahan --Risk Assessment • Structured Risk Assessment v. no structure • Uses of Outpatient Commitment

5. FEDERAL LAW ON THE CONFIDENTIALITY OF ALCOHOL AND SUBSTANCE ABUSE RECORDS

6. GENERAL LEGAL PROVISIONS Federally assisted drug abuse programs may not disclose patient identifying information to third parties except in specific situations:

7. DISCLOSURE EXCEPTIONS The patient has given written consent; Federal regulations permit disclosure without consent; A court order is issued under federal law and is accompanied by a subpoena.

8. USE IN CRIMINAL PROCEEDINGS Unless a court order is issued, no records protected by this law may be used to initiate or substantiate any criminal charges against a patient or conduct any investigation of a patient SEE Subpart E below

9. Civil Commitment of Convicted Prisoner • Vitek v. Jones • Compare Donaldson, Addington, Cameron

10. Commitment for Psychiatric Treatment following NGRI • Foucha v. Louisiana • Compare Donaldson, Addington, Cameron

11. Forced Medication during Trial • Riggins v. Nevada Forced Medication after Conviction • Washington v. Harper

12. Insanity Defense—the Moral Inquiry • Background—From McNaughten [1843] to Hinkley [1982] • Georgia Law

13. John Stewart MillOn Liberty (1859)

14. Exceptions to Mill’sLiberty Principle People who lack the necessary equipment for rational decision-making: Children? Mentally infirm? Mentally retarded? (what category?)

15. M’Naughten 1843 • “not in a sound state of mind” • “might be affected by morbid delusions” • Nevertheless, “might have a moral perception of right and wrong” • Delusion “carried beyond the power of his own control and left him no such perception” • “not capable of exercising any control over acts …in connexion with his delusion”

16. M’Naughten 1843 • “nature of the disease…..” • “To go on gradually until it had reached a climax when it burst forth with irresestible intensity…. • …a man might go on for years quietly….but would all at once break out into the most extravagant and violent paroxysms.”

17. M’Naughten 1843 • Tindal jury instructions: • Every man is presumed sane • If insane, must prove a “defect of reason (that is related to) disease of the mind” • So as not to know the nature and quality of the act • Or (at least) that he did not know he was doing what was wrong • If conscious that the act was one which he ought not to do and it was illegal, he is punishable

18. Criminal Culpability--Minimum Age 16-3-1  •     A person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.

19.  Mental capacity; insanity 16-3-2  • A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to such act, omission, or negligence.

20.   Delusional compulsion 16-3-3 •    A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.

21.  Intoxication 16-3-4 • A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act. • Voluntary intoxication shall not be an excuse for any criminal act or omission

22. Special Procedures for Forensic Mental Health Cases • Competence to stand trial • Sanity at time of the offense • Not Guilty by Reason of Insanity • Guilty But Mentally Ill • Role of expert witnesses

23.  Mental Incompetency to stand trial 17-7-130 • Following a plea of MInc., special jury assessment, • Transfer to Dept. of HR, or • Retain custody and proceed to commitment; • Special procedures for commitment while in criminal custody

24. For Misdemeanors or Nonviolent Offenses • Outpatient evaluation for civil commitment is allowed

25. "Nonviolent offense"17-7-130 NOT OR Arson; Stalking; Fleeing and attempting to elude a police officer; Any sexual offense against a minor; Any offense with deadly weapon; and  Felony offenses with actual or potential physical harm to another person. • Murder; • Rape; • Aggravated sodomy; • Armed robbery; • Aggravated assault; • Hijacking of a vehicle; • Aggravated battery; • Aggravated sexual battery; • Aggravated child molestation; • Aggravated stalking;

26. Civilly committed Misdemeanants • If the defendant so committed is charged with a misdemeanor offense, the committing court may civilly commit the defendant for a period not to exceed one year. Following the commitment period, the charges against the defendant shall be dismissed by operation of law.

27. Sanity at time of offense 17-7-130.1 When notice of an insanity defense is filed, the court shall appointat least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial.

28. Insanity or Mental Incompetency at time of crime 17-7-131 “Insane at the time of the crime" or “mentally ill” or “mentally retarded” shall not include a mental state manifested only by repeated unlawful or antisocial conduct.

29. Possible Outcomes after Defense of Insanity Guilty; Not guilty; Not guilty by reason of insanity at the time of the crime; Guilty but mentally ill at the time of the crime The finding of guilty but mentally ill or guilty but mentally retarded shall be made only in felony cases

30. Truth in Sentencing Provisions § 17-7-131 (3) (A-C)

31. Commitment of NGRI Defendant A defendant who has been found not guilty by reason of insanity at the time of the crime and is ordered committed to the Department of Human Resources may only be discharged from that commitment by order of the committing court ;

32. Release of NGRI Defendant Application for the release of a defendant who has been committed upon the ground that he does not meet the civil commitment criteria may be made to the committing court, either by such defendant or by the superintendent of the state hospital in which the said defendant is detained; The burden of proof in such release hearing shall be upon the applicant.

33. GBMI disposition Whenever a defendant is found guilty but mentally ill at the time of a felony or guilty but mentally retarded, the court shall sentence him or her in the same manner as a defendant found guilty of the offense, In death penalty cases, those found GBMR will receive life in prison

34. Treatment for MI or MR after conviction A defendant who is found guilty but mentally ill at the time of the felony or guilty but mentally retarded shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness or mental retardation.

35. The Death Penalty and the Mentally Retarded Defendant • Atkins v. Virginia • http://www.oyez.org/cases/2000-2009/2001/2001_00_8452/ • Compare Cleburne & Heller

36. Mental Retardation

37. Different Developmental Characteristics are Related to Differing Level of Mental Retardation (DSM-IV Criteria) Mild Moderate Severe Profound

38. Mild Mental Retardation 75% to 90% of all cases of retardation Function at ½ to 2/3 of norm (IQ: 50 to 70) Slow in all areas May have no unusual physical signs Can acquire practical skills Useful reading and math skills up to grades 3 to 6 level Can conform socially Can acquire vocational skills for self-maintenance Integrated into general society

39. “Mentally retarded person" means a person having a significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and originating in the developmental period. 37-4-2

40. Majority, Atkins v. Virginia Dissent Pamela Rumpz James Ellis

41. Bank Camera captures picture of killers--1996

42. “Lawyer Reveals Secret; Toppling Death Sentence” New York Times 1/19/2008

43. Georgia Insanity and GBMI • Stevens v. State ( • Shepherd v. State (2006)

44. Ford v. Wainwright • May not execute insane inmate

45. Ake v. Oklahoma • Use of expert witnesses