Legal and Ethical Issues
Chapter 14
Mental Health and the Legal System:
An Overview
 A variety of legal and ethical issues exist in regard
to mental health and abnormal psychology
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The nature of civil vs. criminal commitment
Balancing ethical considerations vs. legal considerations
The role of psychologists in legal matters
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Expert witnesses, forensic psychology
Rights of patients and research subjects
Practice standards and the changing face of mental health
care
Civil Commitment: Overview, Criteria,
and Oversight Authority
 Civil Commitment Laws
 Address legal declaration of mental illness
 Address when a person can be placed in a hospital or institution
for treatment
 Such laws and what constitutes mental illness vary by state
 "Mental illness" means a substantial disorder of thought, mood,
perception, psychological orientation or memory that significantly
impairs judgment, behavior, capacity to recognize reality or
ability to meet the ordinary demands of life; (OS §43A-1-103-3)
 Dangerousness to Self or Others: Central to Commitment
Proceedings
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Assessing dangerousness: The role of mental health professionals
Knowns and unknowns about violence and mental illness
Civil Commitment
 General Criteria for Civil Commitment
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Demonstrate that a person has a mental illness and needs
treatment (often exclude substance use/abuse)
Show that the person is dangerous to self or others
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Bias based on gender, race/ethnicity
Predicting groups with higher likelihood of dangerous behavior
vs predicting individual’s likelihood of dangerous beh.
Establish a grave disability – Inability to care for self
 Governmental Authority Over Civil Commitment
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Police power – Protection of the health, welfare, and safety
of society
Parens patriae – State acts a surrogate parent
Civil Commitment - Changes
 Supreme Court cases prohibit confinement of
nondangerous person who is capable of surviving by
self or with help of willing & responsible family or
friends
 More restrictive commitment laws may result in
mentally ill being jailed for criminal offenses
 Deinstitutionalization movement led to increase in
homelessness rate
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Of the 2.5 – 3.5 million homeless, 25-30% are mentally ill
Lack of community mental health facilities to replace large
inpatient hospitals
The Civil Commitment Process
 Initial Stages (OK)
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Protective custody
Emergency Evaluation (<12 hours)
Emergency Detention (<72 hours)
 Subsequent Stages
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Involve normal legal proceedings in most cases
Determination is made by a judge regarding whether to
commit the person
Criminal Commitment
 Insanity Defense
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M’Naghten Rule – do not know nature & quality of act
performing, or did not know act was wrong
Irresistible impulse – even if aware that act was wrong, no
longer had power to choose between right & wrong (lacked
free agency)
Durham Rule – was criminal act the result of mental
disorder?
American law Institute Standard – because of mental
illness/defect, must lack capacity to understand criminality
of behavior or to avoid it (M’Naghten & Irresistible
impulse); but cannot be result of antisocial or repeated
criminal behavior
 Insanity Defense (cont’d)
 Insanity Defense Reform Act (1984) if due to mental illness or
mental retardation unable to appreciate wrongfulness of conduct
at the time of the offense
 Diminished capacity – mental illness can diminish ability to
understand nature and impact of one’s behavior; issue of intent
 Public perception of frequency of insanity defense and the
time of hospitalization is highly inaccurate
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Fewer than 1% cases use insanity defense
Length of hospitalization often longer than prison term if had
been convicted of the crime
 Guilty but Mentally Ill – convicted, but either go to prison or
mental hospital, or combination of 2 (sentence given)
Competency to Stand Trial
 Must be able to participate in own defense,
understand the legal proceedings
 Typically sent to mental facility for treatment, if
regain competency may then be brought to trial or
may never be brought to trial
Patient’s Rights: An Overview
 The Right to Treatment
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Mentally ill persons cannot be involuntarily committed
without treatment
Treatment includes active efforts to reduce symptoms and
provide humane care
 The Right to the Least Restrictive Alternative
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Treatment within the least confining and limiting
environment
 The Right to Refuse Treatment
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Often in cases involving medical or drug treatment
Persons cannot be forced to become competent via taking
antipsychotic medication
Patient’s Rights: An Overview (cont.)
 The Right to Confidentiality vs. Duty to Warn
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Confidentiality – Protection of disclosure of personal
information
Limits to confidentiality
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Duty to Warn – Tarasoff
Suspicion of neglect or abuse of children or “vulnerable
adults”
Court order
Releases of Information
 The Right to Informed Consent
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Nature of treatment proposed
Conditions of treatment, including confidentiality
Alternatives to treatment
Research Participant Rights: An Overview
 The Right to be Informed About the Research
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Involves informed consent, not simply consent alone
 The Right to Privacy
 Right to be Treated with Respect and Dignity
 Right to be Protected from Physical and Mental
Harm
 Right to Chose or to Refuse to Participate in
Research Without Negative Consequences
 Right to Anonymity with Regard to Reporting of
Study Findings
 Right to Safeguarding of Records
Clinical Practice Guidelines and Standards
 Agency for Health Care Policy and Research
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Focus on delivery of efficient and cost-effective mental
health services
Dissemination of relevant state-of-the-art information to
practitioners
Establish clinical practice guidelines for assessment and
treatment
 American Psychological Association’s Practice
Guidelines
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Standards for clinical efficacy research
Standards for clinical effectiveness research
Examples include APA Division 12 list of empiricallysupported treatments