commitment to individual rights and fairness. During this period, the rights of people with mental illness dominated.

Transcription

1 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.

2 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES 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.

3 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.

4 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.

5 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.

6 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.

7 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 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.

8 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES 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.

9 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 deserving of differential treatment. d. Research shows that persons who receive the GBMI verdict are more likely to be imprisoned and to receive longer sentences than people pleading NGBI and are no more likely to receive treatment than other prisoners who have mental illnesses.

10 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 10 C. Competence to stand trial requires that a person understand the charges against them and be able to assist with their own defense, as outlined in the Supreme Court in Dusky v. United States. A person may thus be judged insane at the time of a criminal act but still be competent to stand trial. 1. deemed incompetent to stand trial typically loses authority to make decisions and faces commitment. amount of time a person can be committed to determine competency cannot be indefinite, after a reasonable amount of time, the person must be found competent, set free, or committed under civil law. 2. The burden of proof in competence proceedings is on the defendant. D. The professional issue of duty to warn in the case of a dangerous was highlighted in the case of Tarasoff v. Regents of the University of California. In this case, the court ruled that therapists must warn persons at risk of harm by their clients. Other cases have since further defined the role of the therapist to warn others. For example, threats must be specific in nature (Thompson v. County of Alameda). E. Courts often rely on expert witnesses, or those with specialized knowledge to assist them in making decisions. Public perception of expert witnesses is ambivalent (i.e., seeing the value of having an expert to educate the jury on the one hand, while also viewing the expert as a hired gun whose opinions suit the side that pays their bills). 1. Research suggests that mental health professionals can make reliable predictions of dangerousness over a shortterm (i.e., 2 to 20 days after the evaluation), but not over long periods of time.

11 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES Research also suggests that mental health professionals can assist in making reliable DSM diagnoses. However, statements about whether someone has a mental illness reflect determinations made by the court, not the mental health professional. III. 3. Areas in which mental health professionals do appear to have expertise are the assessment of malingering (i.e., faking or grossly exaggerating symptoms) and competence (i.e., ability to understand and assist with one s own defense). Patients' Rights and Clinical Practice Guidelines A. A fundamental right of those in mental health facilities is the right to treatment. Starting in the 1970s, a series of class action lawsuits helped establish the rights of people with mental illness and mental retardation. 1. A landmark case, Wyatt v. Stickney, helped set standards for minimum staff-to-patient ratios, structural requirements (e.g., number of showers per resident), and that facilities make positive efforts to attain treatment goals for their patients. In addition, this case expanded upon the concept of least restrictive alternative, indicating that people should be provided with treatment in the least confining and limiting environment. Yet, a gap was left as to what constituted proper treatment. 2. In 1986, Congress passed the Protection and Advocacy for Mentally Ill Individuals Act, which established a series of protection and advocacy agencies in each state to investigate allegations of abuse and neglect and to act as legal advocates.

12 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 12 B. A more controversial patient right is the right to refuse treatment, particularly with respect to psychotropic (antipsychotic) medications. This often pits mental health concerns against individual rights. In addition, the issue has arisen as to whether one can be forced to become competent. 1. A Supreme Court ruling, Riggins v. Nevada, stated that people cannot be forced to take antipsychotic medications because of the potential negative side effects (e.g., tardive dyskinesia). C. Research participants have the following rights: to be informed about the purpose of the research study, to privacy, to be treated with respect and dignity, to be protected from physical and mental harm, to choose to participate or to refuse to participate without prejudice or reprisals, to anonymity in reporting results, to safeguarding their records. Such rights are particularly important for people with psychological disorders who may not be able to understand them fully. 1. One of the most important concepts in research is information about the risks and benefits of a study. Simple consent is not enough, it must be informed consent (i.e., formal agreement by the subject to participate after being fully apprised of all important aspects of the study, including possibility of harm).

13 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 13 D. Clinical practice guidelines 1. Recognition of wide differences in treating the same disorder, and the increasing demand of managed-care companies for knowledge of appropriate and effective treatments, has led to the creation in 1989 of a new branch of the federal government called the Agency for Health Care Policy and Research (AHCPR). a. The AHCPR s aim is to establish uniformity in the delivery of effective health and mental health care and to communicate to practitioners throughout the country the latest developments in treating certain disorders effectively. b. AHCPR has published clinical practice guidelines for specific disorders (e.g., sickle cell disease, unstable angina, depression in primary care), and also facilitates guideline construction by other agencies. c. Through the AHCPR, the government hopes to reduce costs related to unnecessary or ineffective treatments and to facilitate dissemination based on the latest research evidence. 2. The American Psychological Association composed a template, or set of principles, in 1995 for constructing and evaluating guidelines for clinical interventions for both psychological disorders and psychosocial aspects of physical disorders. The guidelines are aimed to facilitate decision making on the part of practitioners, and to restrain unnecessary cost cutting by health care plans via prohibition of certain treatments or treatment durations.

14 MENTAL HEALTH SERVICES: LEGAL AND ETHICAL ISSUES - 14 a. The APA Division 12 Task Force practice guidelines for specific disorders were constructed based on two simultaneous considerations. i. The first, the clinical efficacy axis, involves a thorough consideration of the scientific evidence to determine whether the intervention in question is effective. That is, is the treatment effective when compared to an alternative treatment or to no treatment in a controlled clinical research context? Answering this question requires that experiments show that the intervention in question is better than no therapy, better than a nonspecific therapy, or better than an alternative therapy, with the latter providing the highest level of evidence for the treatment s effectiveness. This axis is concerned largely with internal validity. ii. The second axis, or clinical utility, is concerned with the effectiveness of the intervention in the practice setting, regardless of the research evidence on its efficacy. That is, will an intervention with proven efficacy in a research setting also be effective in practice settings when applied by frontline practitioners? This axis is concerned with external validity.

15 Chapter Fourteen Concept Checks Concept Check 14.1 Check your understanding of civil commitment by filling in the blanks. Several conditions must be met before the state is permitted to commit a person involuntarily: The person has a(n) (1) mental disorder and is in need of treatment; the person is considered (2) dangerous to herself or himself or others, and the person is unable to care for himself or herself, otherwise known as (3) grave disability. Mental illness is a(n) (4) legal concept, typically meaning severe emotional or thought disturbances that negatively affect an individual s health and safety although this definition differs from state to state. When the laws about civil commitment emerged, (5) deinstitutionalization (movement of disabled individuals out of mental institutions) and (6) transinstitutionalization (movement of disabled individuals to a lesser facility) also occurred. Concept Check 14.2 Check your understanding of criminal commitment by identifying the following concepts: (a) competence to stand trial, (b) diminished capacity, (c) American Law Institute rule, (d) the Durham rule, (e) the M Naughton rule, (f) malingering, (g) expert witness, and (h) duty to warn. 1. The person could not distinguish between right and wrong at the time of the crime. (e) the M Naughton rule 2. The person is not criminally responsible if the crime was due to mental disease or mental defect. (d) the Durham rule 3. The person is not responsible for the crime if he or she is not able to appreciate the wrongfulness of behavior due to mental disease or defect. (c) American Law Institute rule 4. A mental disorder could lessen a person s ability to understand criminal behavior and to form criminal intent. (b) diminished capacity 5. The defendant does not go to trial because he or she is unable to understand the proceedings and assist in the defense. (a) competence to stand trial 6. One of my clients threatened his mother s life during his session today. Now I must decide whether I have a(n) (h) duty to warn. 7. Dr. X testified in court that the defendant was faking and exaggerating symptoms to evade responsibility. Dr. X is acting as a(n) (g) expert witness and the defendant is (f) malingering. Concept Check 14.3 Identify the following situation using one of these terms: (a) informed consent, (b) refuse treatment, (c) clinical utility, (d) clinical efficacy, and (e) reduce costs. 1. The clinical researcher knows the potential for harm of the participants is very slight, but is nevertheless careful to tell them about it and asks them whether they agree to give their (a) informed consent. 2. Recently, clinical practice guidelines were established on two axes. The (d) clinical efficacy axis is a consideration of the scientific evidence to determine whether the intervention in question is effective. 3. The Supreme Court ruling in Riggins v Nevada (1992) helped support a patient s right to (b) refuse treatment. 4. The (c) clinical utility axis is concerned with an intervention s effectiveness in the clinical setting where it will be applied, not in the research setting. 5. Clinical practice guidelines are designed to safeguard clients and (e) reduce costs.

16 Chapter Fourteen Concept Checks Concept Check 14.1 Check your understanding of civil commitment by filling in the blanks. Several conditions must be met before the state is permitted to commit a person involuntarily: The person has a(n) (1) and is in need of treatment; the person is considered (2) to herself or himself or others, and the person is unable to care for himself or herself, otherwise known as (3). Mental illness is a(n) (4) concept, typically meaning severe emotional or thought disturbances that negatively affect an individual s health and safety although this definition differs from state to state. When the laws about civil commitment emerged, (5) (movement of disabled individuals out of mental institutions) and (6) (movement of disabled individuals to a lesser facility) also occurred. Concept Check 14.2 Check your understanding of criminal commitment by identifying the following concepts: (a) competence to stand trial, (b) diminished capacity, (c) American Law Institute rule, (d) the Durham rule, (e) the M Naughton rule, (f) malingering, (g) expert witness, and (h) duty to warn. 8. The person could not distinguish between right and wrong at the time of the crime. 9. The person is not criminally responsible if the crime was due to mental disease or mental defect. 10. The person is not responsible for the crime if he or she is not able to appreciate the wrongfulness of behavior due to mental disease or defect. 11. A mental disorder could lessen a person s ability to understand criminal behavior and to form criminal intent. 12. The defendant does not go to trial because he or she is unable to understand the proceedings and assist in the defense. 13. One of my clients threatened his mother s life during his session today. Now I must decide whether I have a(n). 14. Dr. X testified in court that the defendant was faking and exaggerating symptoms to evade responsibility. Dr. X is acting as a(n) and the defendant is. Concept Check 14.3 Identify the following situation using one of these terms: (a) informed consent, (b) refuse treatment, (c) clinical utility, (d) clinical efficacy, and (e) reduce costs. 6. The clinical researcher knows the potential for harm of the participants is very slight, but is nevertheless careful to tell them about it and asks them whether they agree to give their. 7. Recently, clinical practice guidelines were established on two axes. The axis is a consideration of the scientific evidence to determine whether the intervention in question is effective. 8. The Supreme Court ruling in Riggins v Nevada (1992) helped support a patient s right to. 9. The axis is concerned with an intervention s effectiveness in the clinical setting where it will be applied, not in the research setting. 10. Clinical practice guidelines are designed to safeguard clients and.