After reading the article, Tarasoff vs Regents, briefly discuss your opinion of the “duty to warn” law. In what ways does it protect the victim? In what ways may duty to warn harm the patient? Consider both perspectives in your answer (i.e., protection vs. violation of patient rights).
https://www.goodtherapy.org/blog/psychpedia/tarasoff-v-regents
https://www.apa.org/ethics/code
Chapter 16: Legal, Ethical, & Professional Issues in Abnormal Psychology
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Learning Objectives
Who treats mental disorders?
What makes a person incompetent to stand trial?
What is insanity?
Can a person be insane but competent? Incompetent but sane?
How easy is it to escape punishment for a crime by pleading insanity?
How dangerous are ex-mental patients?
How long does involuntary commitment last?
Can people with mental disorders be given treatment against their will?
Should psychologists prescribe medication?
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Who Treats Mental Disorders?
There are a variety of professionals who have been trained in the assessment and treatment of psychological difficulties.
Psychiatrists
Clinical Psychologists
Counseling Psychologists
Psychiatric Nurse Practitioners
Clinical Social Workers
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Psychiatrists
Medical doctors who have completed a specialization in psychiatry, after earning the MD degree
Generally, 4 to 6 years of schooling beyond the bachelor’s degree
Treatment typically involves the use of prescription medication
Sometimes psychiatrists may provide various types of psychotherapies.
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Clinical Psychologists
Have completed doctoral training leading to either the PhD (Doctor of Philosophy) or PsyD (Doctor of Psychology) degree
Generally, 4 to 6 years of schooling beyond the bachelor’s degree
After earning board certification or licensure to practice, qualified to independently diagnose and treat mental disorders.
Although they do not currently prescribe medications, a movement in that direction is underway in the United States.
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Psychological Associates
Some psychologists hold a Master’s Degree (generally, 2 to 3 years of schooling beyond the Bachelor’s Degree) and may become licensed as Psychological Associates.
These individuals treat mental disorders, but may be required to work under the supervision of a PhD or PsyD.
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Counseling Psychologists
Typically hold either a Doctoral or Master’s Degree in psychology and may have acquired the credential of Licensed Professional Counselor or Marriage and Family Therapist
Frequently provide assessment and counseling services to those with less severe disturbances, such as marital problems and life or career difficulties
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Psychiatric Nurse Practitioners
Completed training leading to the MSN (Master of Science in Nursing) degree (generally, 2 to 3 years of training beyond the bachelor’s degree)
After completing clinical rotation and passing nursing boards, qualified to diagnose and treat mental disorders and may prescribe medication under the periodic supervision of an MD
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Clinical Social Workers
Completed training leading to the MSW (Master of Social Work) degree (usually 1 to 2 years of schooling beyond the bachelor’s degree)
Once they complete the requirements of supervised practice leading to the LCSW (Licensed Clinical Social Worker) credential, they are qualified to provide therapy to those with mental disorders or less severe disturbances.
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The Interface of Mental Disorders and the Law
Sometimes those with mental disorders find themselves involved in the legal system.
Psychological and psychiatric evaluations are essential for providing critical information needed to render a judgment on commitment, competency, or insanity.
The process of legal determination is less precise than that of clinical diagnosis, frequently requiring predictions of what might happen or estimates of the probability of dangerous behavior in future situations.
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Legal Issues in Abnormal Psychology
Competency
To stand trial
To manage affairs
Not guilty by reason of insanity
Civil commitment
The right to treatment
The right not to be treated
Deinstitutionalization
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Competency to Stand Trial (Slide 1 of 3)
Concerns an individual’s mental ability handle his or her own legal affairs
In most jurisdictions, people charged with a crime are competent to stand trial if they meet all of the following requirements:
Understand the nature of the charges
Appreciate the seriousness of those charges and the possible results of a conviction
Able to assist their attorney in their own defense
Defendants are assumed to be competent, barring arguments and evidence to the contrary.
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Competency to Stand Trial (Slide 2 of 3)
If the person is ruled to be incompetent to stand trial, the legal proceedings may be put on hold while the individual receives treatment to restore competency.
The hope is that after a period of confinement and treatment for their mental disorder, such persons will regain their mental capacities and then be given a fair trial.
This legal procedure has, at times, led to long-term confinement without the safeguards of a trial.
Louis Perroni, 1955
The rights of individuals to be protected from unreasonable detentions based on incompetency to stand trial have been bolstered.
In Jackson v. Indiana, 1972, the Supreme Court ruled the length of pretrial confinement should be limited.
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Competency to Stand Trial (Slide 3 of 3)
Assessing competency is not an easy task.
Some clients are motivated to exaggerate symptoms or malinger.
In one review of 105 criminal defendants referred for neuropsychological evaluation, the rate of probable and definite malingered neurocognitive dysfunction was over 50%.
Not uncommonly, the expert opinions of prosecution evaluators are very different than the expert opinions of defense evaluators.
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Competency, Other Situations
A disturbed individual may be incompetent to make treatment choices or to conduct daily affairs, including financial and legal decisions.
A treatment guardian, for example, is often appointed when a person with a mental disorder is too disturbed to make informed decisions about accepting or rejecting proposed treatment plans.
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Not Guilty by Reason of Insanity (Slide 1 of 5)
The matter of sanity is a different legal issue from that of competency.
Sanity has to do with the person’s mental state at the time of the crime, not the trial.
The concept is connected to the notion of responsibility over one’s actions and, as a result, over guilt or innocence.
Competency and sanity, therefore, involve independent judgments of mental status at different points in time.
At the very core of the rule of law is the assumption that individuals bear responsibility for their actions.
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Not Guilty by Reason of Insanity (Slide 2 of 5)
There is a long tradition in English law that if persons are so mentally deranged that they have no comprehension of the meaning of their criminal act, they are not legally responsible.
McNaughten rule (1843; England): knowing right from wrong
Irresistible impulse rule (1887; Alabama): a pathological drive or impulse that the individual could not control had compelled the crime
Durham rule (1959; United States): An accused person is not criminally responsible if it is shown that the unlawful act was the product of a mental disease or defect.
This rule proved to be very difficult to apply effectively.
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Not Guilty by Reason of Insanity (Slide 3 of 5)
The American Law Institute (ALI) issued a more comprehensive standard in 1962 in its Model Penal Code.
The ALI standard stated:
A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks the substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law.
As used in this Article, the terms “mental disease” or “defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
The Federal Insanity Defense Reform Act, passed by the U.S. Congress in 1984, described the insanity standard for all federal courts.
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Not Guilty by Reason of Insanity (Slide 4 of 5)
The act limited the volitional component of conforming conduct to the law and partially returned to the McNaughten standard.
A person charged with a criminal offense should be found not guilty by reason of insanity if it is shown that, as a result of mental disease or mental retardation, he was unable to appreciate the wrongfulness of his conduct at the time of his offense.
Sanity examinations must deal with the issues of correct diagnosis, and of accurately distinguishing actual from feigned symptoms.
A U.S. Supreme Court ruling (Atkins v. Virginia, 2002) prohibits the execution of mentally retarded defendants.
Someone with significant intellectual deficits could not “fake good” on an intelligence test, but someone with average or above intelligence could attempt to “fake bad.”
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Not Guilty by Reason of Insanity (Slide 5 of 5)
Unfortunately, standardized intelligence tests are not very sensitive to malingering, and neuropsychological assessments are not specific to intellectual disability.
Only one neuropsychological test (Test of Memory Malingering) shows adequate specificity for detecting feigned intellectual disability.
In the past, the end result has been little different for defendants whether they were found sane or insane.
If sane, they spent many years in prison.
If insane, they spent, on the average, about the same number of years confined to a mental hospital.
In Jones v. United States (1983) the U.S. Supreme Court ruled that those acquitted by reason of insanity could be held under indefinite commitment until they proved themselves no longer dangerous, even if this is longer than the sentence that conviction would have carried.
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Guilty but Mentally III
If convicted, treatment for the mental disorder is provided.
When treatment is completed, the person is returned to prison to serve out the remainder of the sentence, if the sentence extends past the period of the treatment.
Release becomes a decision for the justice system, not the mental health system
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Forensic Use of the DSM-5
“In most situations, the clinical diagnosis of a DSM-5 mental disorder such as intellectual disability (intellectual developmental disorder), schizophrenia, major neurocognitive disorder, gambling disorder, or pedophilic disorder does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or a specified legal standard (e.g., for competence, criminal responsibility, or disability). Even when diminished control over one’s behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time.” (American Psychiatric Association, 2013, p. 25).
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Civil Commitment (Slide 1 of 2)
A much larger group of mentally disturbed individuals (who are accused of no crime) are faced with a different legal procedure, involuntary commitment to treatment facilities.
Civil commitment under a state’s mental health code allows the state, under certain circumstances, to provide protection and treatment to unwilling persons.
In most states, the legal grounds for civil commitment concern the degree to which the disordered person is dangerous to self or others by reason of a mental disorder.
The prediction of future dangerousness is fraught with difficulties, and the results of mistakes can be serious.
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Civil Commitment (Slide 2 of 2)
The basic conflict associated with involuntary commitment is between:
The civil liberties of the individual
Concerns of the larger society
Protecting itself from dangerous people
Providing help for those too mentally incapacitated to understand their own plight
The prevalence of violence among those with a mental disorder is five times higher than those without a mental disorder.
Violence is elevated in those diagnosed with schizophrenia, major depression, bipolar disorder, and especially alcohol and drug abuse and dependence.
Still, more than 90% of those with mental disorders are not violent.
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The Right to Treatment (Slide 1 of 2)
Involuntarily committed patients are in a special circumstance.
Their liberty has been denied, but they have not been convicted of a crime and their legal rights remain intact.
Court cases have defined those rights to include:
The right to treatment
The right to receive that treatment in least restrictive environment that is appropriate
The right to refuse certain forms of treatment.
A class action suit (Wyatt v. Stickney, 1971) was brought against the state of Alabama for not providing either mental patients or institutionalized mentally retarded individuals with a minimum degree of treatment.
District Judge Frank M. Johnson ruled: “To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.”
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The Right to Treatment (Slide 2 of 2)
The Protection and Advocacy for Mentally Ill Individuals Act, passed by Congress in 1986, established a protection and advocacy system to safeguard the rights of those with serious mental disorders and to investigate allegations of abuse.
Involuntary commitment mandates the state to provide treatment to an unwilling person, making the issue of refusal of treatment for mental disorders a challenging legal question.
No clear and general guidelines cover the broad range of situations, except that courts have broadly supported emergency treatment, including medication for violent or dangerous patients without their consent.
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Deinstitutionalization
With the widespread availability of psychotropic medications in the 1950s, it became possible to control some of the florid symptoms of psychosis without confinement.
By the 1970s, legal standards concerning the right to treatment in the least restrictive setting were in place.
The population of patients housed inside of state hospitals decreased dramatically.
By 1992, the number had been reduced by 77%, compared to 1970.
Frequently, services for former mental patients are fragmented and many find themselves homeless without recourse to the asylum.
Although there are many excellent aftercare programs, there are inadequacies in outpatient mental health treatment in the U.S.
Homelessness and inappropriate legal incarceration are major problems.
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Ethical and Professional Issues in Abnormal Psychology
Confidentiality
Privileged communication
Duty to warn
Should psychologists prescribe medication?
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Confidentiality
There is an ethical obligation on the part of the therapist not to reveal sensitive information to others.
It is important for confidence and security.
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Privileged Communication
Patient holds privilege to control release of private information—no records are available without expressed, written consent.
If a minor, the privilege is held by the parents or legal guardians.
If there is a treatment guardian, they have the privilege.
In some circumstances, such as to protect the client from serious harm, there may be ethical and legal requirements for disclosure to take place.
Usually, disclosure is necessary if the safety of the client or someone else may be at stake if information is not released.
Psychologists have a legal obligation to report child abuse or elderly abuse.
Rules limiting confidentiality and privilege vary from state to state, but there is general agreement that limits do exist, and that therapists are obligated to make their clients aware of these limits.
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Duty to Warn
Many states have regulations that obligate therapists to act to protect or to warn persons against whom specific and credible threats have been made during therapy.
There is much uncertainty about the limits of those regulations.
For example, it is not yet clear whether a psychologist is obligated to break confidentiality to warn sexual partners of an HIV-infected client.
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Should Psychologists Prescribe Medications? (Slide 1 of 3)
The ability to prescribe psychotropic medications was historically centered on medical doctors with a specialty in psychiatry, able to use their mental health expertise to assess and treat those with serious disorders.
Prescription practices spread to include non-psychiatric physicians.
Most psychotropic medications are prescribed by non-psychiatric physicians.
By the 1980s, non-physicians were gaining limited prescriptive authority.
Nurses, holding the MSN degree with special training in pharmacology, were allowed to prescribe medications as Psychiatric Nurse Practitioners under a doctor’s supervision, as were Physician Assistants.
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Should Psychologists Prescribe Medications? (Slide 2 of 3)
Pharmacists had prescriptive authority in most states as well.
The American Psychological Association adopted a policy favoring prescriptive authority in 1996 and proposed training and legislative goals to promote it.
A significant proportion of psychologists oppose the decision.
Some object that training is inadequate.
Others believe such a path would weaken the integrity of psychological science.
Psychologist organizations in several states have introduced legislation to allow prescription privileges for psychologists who have specified training.
Medical psychologists in Louisiana and New Mexico can now hold limited prescriptive authority.
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Should Psychologists Prescribe Medications? (Slide 3 of 3)
In 2011, the American Psychological Association, anticipating increased involvement in mediation management by its membership, issued guidelines for prescriptive practices by psychologists.
Careful, independent research and the empirical validation of psychological interventions should remain the goal of psychological science, whether medications form a portion of the practicing psychologist’s arsenal or not.
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Chapter Summary (Slide 1 of 3)
The legal concept of competency to stand trial concerns a person’s mental state at the time of legal proceedings. Normally, a competent defendant understands the charges and their seriousness and can assist an attorney in a legal defense.
The legal concept of insanity concerns a person’s mental state at the time of the offense. Although the legal criteria for insanity are still not clearly defined, there is general agreement that insanity involves an inability to distinguish right from wrong and an inability to form specific criminal intent, due to a serious mental disorder.
Some states have included verdicts, such as “guilty but mentally ill,” in which the person must serve out a sentence while receiving whatever treatment seems appropriate.
FINAL THOUGHTS
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Chapter Summary (Slide 2 of 3)
The process of involuntary commitment involves a conflict between two social concerns: the right of society to protect itself from dangerous persons and the desire to provide treatment for those who lack sufficient understanding to take care of themselves versus the civil liberties of the individual.
Although the vast majority of those with mental disorders are not dangerous to others, the presence of any disorder is associated with a significant increase in the likelihood of violence. The link is strongest for those with substance use disorders.
The U.S. Supreme Court has ruled that persons who are labeled mentally ill cannot be confined against their will without treatment if they are not dangerous to themselves or others and are capable of surviving on the outside.
Courts have established a right to treatment for those hospitalized with mental disorders. Courts have also established a right to receive treatment in the least restrictive setting that is appropriate.
FINAL THOUGHTS
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Chapter Summary (Slide 3 of 3)
Voluntary, competent patients can refuse treatment for a mental disorder. It is not clear whether involuntarily committed patients can refuse treatment. Courts have supported emergency treatment of involuntary patients who are dangerous, without their consent.
Psychologists are seeking legislation that would allow them to prescribe psychotropic medications after they receive the necessary training. Limited numbers of psychologists have gained prescriptive authority within a Department of Defense pilot program and in the states of Louisiana and New Mexico. Psychiatry opposes this extension of prescription privileges, as do some psychologists who are concerned about the integrity of psychological science under the influence of the pharmaceutical industry.
FINAL THOUGHTS
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