3rd edition as of July 2023

 

Module Overview

In our final module, we will tackle the issue of how clinical psychology interacts with law. Our discussion will include topics related to civil and criminal commitment, patient’s rights, and the patient-therapist relationship. We end on an interesting note and discuss whether gaming can be addictive. Enjoy.

 

Module Outline

• 15.1. Legal Issues Related to Mental Illness
• 15.2. Patient’s Rights
• 15.3. The Therapist-Client Relationship

 

Module Learning Outcomes

• Describe how clinical psychology interacts with law.
• Describe issues related to civil commitment.
• Describe issues related to criminal commitment.
• Outline patient’s rights.
• Clarify concerns related to the therapist-client relationship.

 

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15.1. Legal Issues Related to Mental Illness

 

Section Learning Objectives

• Define forensic psychology/psychiatry.
• Describe potential roles a forensic psychologist might have.
• Define civil commitment.
• Identify criteria for civil commitment.
• Describe dangerousness.
• Outline procedures in civil commitment.
• Define criminal commitment.
• Define NGRI.
• Describe pivotal rules/acts/etc. in relation to the concept of insanity.
• Define GBMI.
• Clarify what it means to be competent to stand trial.

 

15.1.1. Forensic Psychology/Psychiatry

According to the American Psychological Association, forensic psychology/psychiatry is when clinical psychology is applied to the legal arena in terms of assessment, treatment, and evaluation. Forensic psychology can also include the application of research from other subfields in psychology to include cognitive and social psychology. Training includes law and forensic psychology, and solid clinical skills are a must. According to APA, a forensic psychologist might “perform such tasks as threat assessment for schools, child custody evaluations, competency evaluations of criminal defendants and of the elderly, counseling services to victims of crime, death notification procedures, screening and selection of law enforcement applicants, the assessment of post-traumatic stress disorder and the delivery and evaluation of intervention and treatment programs for juvenile and adult offenders.” A key issue investigated by forensic psychologists includes mens rea or the insanity plea. We will discuss this shortly.

 

15.1.2. Civil Commitment

     15.1.2.1. What is civil commitment? When individuals with mental illness behave in erratic or potentially dangerous ways, to either themselves or others, then something must be done. The responsibility to act falls on the government through what is called parens patriae or “father of the country” or “country as parent.” Action, in this case, involves involuntary commitment in a hospital or mental health facility and is done to protect the individual and express concern over their well-being, much like a parent would do for their child. An individual can voluntarily admit themselves to a mental health facility, and upon doing so, staff will determine whether treatment and extended stay are needed.

     15.1.2.2. Criteria for civil commitment. Though states vary in the criteria used to establish the need for civil commitment, some requirements are common across states. First, the individual must present a clear danger to either themselves or others. Second, the individual demonstrates that they are unable to care for themself or make decisions about whether treatment or hospitalization is necessary. Finally, the individual believes they are about to lose control, and so, needs treatment or care in a mental health facility.

     15.1.2.3. Assessment of “dangerousness.” Dangerousness can best be defined as the person’s capacity or likelihood of harming themselves or others. Most people believe that those who are mentally ill are more dangerous than those free of mental illness, especially when espousing self-reported conservatism and RWA (Right-Wing Authoritarianism; Gonzales, Chan, and Yanos, 2017; DeLuca and Yanos, 2015) or after tragic events such as a mass shooting (Metzl & MacLeish, 2015). The media plays a role in this, and as McGinty et al. (2014) found, 70% of news coverage of serious mental illness (SMI) and gun violence over a 16-year period (1997 to 2012) focused on extreme events and described specific shootings by persons with SMI. The authors wrote, “Even in thematic news coverage focused on describing the general problem of SMI and gun violence, the majority of news stories did not mention that most people with SMI are not violent or that we lack tools capable of accurately identifying persons with SMI who are at heightened risk of committing future violence.” They concluded that media coverage of persons with SMI as violent might contribute to negative public attitudes.

Rozel & Mulvey (2017) showed that mental illness is a weak risk factor for violence though this is not to say that the mentally ill do not commit violent acts. The authors write, “…it has been documented repeatedly that people who report diagnosable levels of psychiatric symptoms also report more involvement in acts of violence toward others than the general population reports.” Approximately 4% of criminal violence can be attributed to the mentally ill (Metzl & MacLeish, 2015), while those with mental illness are three times more likely to be targets and not perpetrators of violence (Choe et al., 2008).

Regardless of this, we do attempt to identify the level of dangerousness a person may exhibit or have the potential to exhibit. How easy is it to make this prediction? As you might think, it can be very difficult. First, the definition of dangerousness is vague. It implies physical harm, but what about psychological abuse or the destruction of property? Second, past criminal activity is a good predictor of future dangerousness but is often not admissible in court. Third, context is critical; in some situations, the person is perfectly fine, but in other circumstances, like having to wait in line at your local Department of Motor Vehicles, the person experiences considerable frustration and eventually anger or rage.

     15.1.2.4. Procedures in civil commitment. The process for civil commitment does vary somewhat state-to-state, but some procedures are held in common. First, a family member, mental health professional, or primary care practitioner, may request that the court order an examination of an individual. If the judge agrees, two professionals, such as a mental health professional or physician, are appointed to examine the person in terms of their ability for self-care, need for treatment, psychological condition, and likelihood to inflict harm on self or others. Next, a formal hearing gives the examiners a chance to testify as to what they found. Testimonials may also be provided by family and friends, or by the individual him/herself. Once testimonies conclude, the judge renders judgment about whether confinement is necessary and, if so, for how long. Typical confinements last from 6 months to 1 year, but an indefinite period can be specified too. In the latter case, the individual has periodic reviews and assessments. In emergencies, the process stated above can be skipped and short-term commitment made, especially if the person is an imminent threat to themself or others.

Before we move on, consider for a minute that a person who is accused of a crime is innocent until proven guilty, has a trial, and if found guilty beyond a reasonable doubt (or almost complete certainty) is only then incarcerated. This is not true for the mentally ill, who may be committed to a facility without ever having committed a crime or having a trial, but simply because they were judged as having the potential to do so (or was seen as dangerous). This potential means that there must be “clear and convincing” proof, which the U.S. Supreme Court defines as 75% certainty. The standard to commit is much different for those accused of criminal acts and those who are mentally ill.

 

15.1.3. Criminal Commitment

When people are accused of crimes but found to be mentally unstable, they are usually sent to a mental health institution for treatment. This is called criminal commitment. Individuals may plead not guilty by reason of insanity (NGRI) or as it is also called, the insanity plea. When a defendant pleads NGRI they are acknowledging their guilt for the crime (actus rea) but wish to be seen as not guilty since they were mentally ill at the time (mens rea).

The origins of the modern definition of insanity go back to Daniel M’Naghten in 1843 England. He murdered the secretary to British Prime Minister, Robert Peel, during an attempted assassination of the Prime Minister. He was found to be not guilty due to delusions of persecution, which outraged the public and led to calls for a more precise definition of insanity. The M’Naghten rule states that having a mental disorder at the time of a crime does not mean the person was insane. The individual also had to be unable to know right from wrong or comprehend the act as wrong. But how do you know what the person’s level of awareness was when the crime was committed?

Dissatisfaction with the M’Haghten rule led some state and federal courts in the U.S. to adopt instead the irresistible impulse test (1887), which focused on the inability of a person to control their behaviors. The issue with this rule is in distinguishing when a person is unable to maintain control rather than choosing not to exert control over their behavior. This meant there were two choices in the U.S. in terms of how insanity was defined – the M’Haghten rule and the irresistible impulse test. A third test emerged in 1954 from the Durham v. United States case, though it was short-lived. The Durham test, or products test, stated that a person was not criminally responsible if their crime was a product of a mental illness or defect. It offered some degree of flexibility for the courts but was viewed as too flexible. Since almost anything can cause something else, the term product is too vague.

In 1962, the American Law Institute (ALI) offered a compromise to the three precepts in use at the time. The American Law Institute standard stated that people are not criminally responsible for their actions if, at the time of their crime, they had a mental disorder or defect that did not allow them to distinguish right from wrong and to obey the law. Though this became the standard, it also became controversial when defense attorneys used it as the basis to have John Hinckley, accused of attempting to assassinate President Ronald Regan, found not guilty by reason of insanity in 1982.

Public uproar led the American Psychiatric Association to reiterate the stance of the M’Naghten test and assert people were only insane if they did not know right from wrong when they committed their crime. The Federal Insanity Defense Reform ACT (IDRA) of 1984 “was the first comprehensive federal legislation governing the insanity defense and the disposition of individuals suffering from a mental disease or defect who are involved in the criminal justice system.” The ACT included the following provisions:

• significantly modified the standard for insanity previously applied in the federal courts
• placed the burden of proof on the defendant to establish the defense by clear and convincing evidence
• limited the scope of expert testimony on ultimate legal issues
• eliminated the defense of diminished capacity, created a special verdict of “not guilty only by reason of insanity,” which triggers a commitment proceeding
• provided for federal commitment of persons who become insane after having been found guilty or while serving a federal prison sentence.

Source: https://www.justice.gov/usam/criminal-resource-manual-634-insanity-defense-reform-act-1984

This is the current standard in all federal courts and about half of all state courts, with Idaho, Kansas, Montana, and Utah choosing to get rid of the insanity plea altogether.

Another possibility is for the jury to deliver a verdict of guilty but mentally ill (GBMI), effectively acknowledging that the person did have a mental disorder when committing a crime, but the illness was not responsible for the crime itself. The jurors can then convict the accused and suggest they receive treatment. Though this looks like an excellent alternative, jurors are often confused by it (Melville & Naimark, 2002), NGRI verdicts have not been reduced, and all prisoners have access to mental health care anyway. Hence it differs from a guilty verdict in name only (Slovenko, 2011; 2009).

A final concept critical to this discussion is whether the defendant is competent to stand trial and refers to the accused’s mental state at the time of psychiatric examination after arrest and before going to trial. To be deemed competent, federal law dictates that the defendant must have a rational and factual understanding of the proceedings and be able to rationally consult with counsel when presenting their defense (Mossman et al., 2007; Fitch, 2007). This condition guarantees criminal and civil rights and ensures the accused understands what is going on during the trial and can aid in their defense. If they are not fit or competent, then they can be hospitalized until their mental state improves.

 

 

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15.2. Patient’s Rights

 

Section Learning Objectives

• Describe rights patients with mental illness have and identify key court cases.

 

The following are several rights that patients with mental illness have. They include:

• Right to Treatment – In the 1966 case of Rouse v. Cameron, the D.C. District court said that the right to treatment is a constitutional right, and failure to provide resources cannot be justified due to insufficient resources. In the 1972 case of Wyatt v. Stickney, a federal court ruled that the state of Alabama was constitutionally obligated to provide all people who were committed to institutions with adequate treatment and had to offer more therapists, privacy, exercise, social interactions, and better living conditions for patients. In the case of O’Connor v. Donaldson (1975), the court ruled that patient’s cases had to be reviewed periodically to see if they could be released. As well, if they are not a danger and are able to survive on their own or with help from family or friends, that they be released.
• Right to Refuse Treatment – As patients have the right to request treatment, they too have the right to refuse treatment such as biological treatment, psychotropic medications (Riggins v. Nevada, 1992), and electroconvulsive therapy.
• Right to Less Restrictive Treatment – In Dixon v. Weinberger (1975), a U.S. District Court ruled that individuals have a right to receive treatment in facilities less restrictive than mental institutions. The only patients who can be committed to hospitals are those unable to care for themselves.
• Right to Live in a Community – The 1974 U.S. District Court case, Staff v. Miller, ruled that state mental hospital patients had a right to live in adult homes in their communities.

 

 

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15.3. The Therapist-Client Relationship

 

Section Learning Objectives

• Describe three concerns related to the therapist-client relationship.

 

Three concerns are of paramount importance in terms of the therapist-client relationship. These include the following:

• Confidentiality – As you might have learned in your introductory psychology course, confidentiality guarantees that information about you is not disseminated without your consent. This applies to students participating in research studies as well as patients seeing a therapist.
• Privileged communication – Confidentiality is an ethical principle while privileged communication is a legal one, and states that confidential communications cannot be disseminated without the patient’s permission. There are a few exceptions to this which include the client being younger than 16, when they are a dependent elderly person and a victim of a crime, or when the patient is a danger to him or herself or others, to name a few.
• Duty to Warn – In the 1976 Tarasoff v. the Board of Regents of the University of California ruling, the California Supreme Court said that a patient’s right to confidentiality ends when there is a danger to the public, and that if a therapist determines that such a danger exists, they are obligated to warn the potential victim. Tatiana Tarasoff, a student at UC, was stabbed to death by graduate student, Prosenjit Poddar in 1969, when she rejected his romantic overtures, and despite warnings by Poddar’s therapist that he was an imminent threat. The case highlights the fact that therapists have a legal and ethical obligation to their clients but, at the same time, a legal obligation to society. How exactly should they balance these competing obligations, especially when they are vague? The 1980 case of Thompson v. County of Alameda ruled that a therapist does not have a duty to warn if the threat is nonspecific.

 

 

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Module Recap

And that’s it. Our final module explored some concepts that transcend any one mental disorder but affect people with mental illness in general. This included civil and criminal commitment and issues such as NGRI or the insanity plea, what makes someone dangerous and what we should do about it, and determining competency to stand trial. We then moved to patient rights, such as the right to treatment and, conversely, the right to refuse treatment. Finally, we ended by discussing the patient-therapist relationship and specifically, when the patient’s right to confidentiality and privileged communication ends, and the therapist has a moral and legal obligation to warn. We hope you find these topics interesting and explore the issues further through the links that were provided and peer-reviewed articles that were cited.

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3rd edition