Thomas Szasz and Civil Commitment
Thomas Szasz was very much against Civil Commitment (5150s) because he thought it was wrong to strip people of some Civil Rights before they had actually caused harm to themselves or others. He also believed that we should allow people to be themselves until they broke a law, then proceed with criminal cases (i.e., you do you until you break the law, then we take you to criminal court with misdemeanors or felonies, but no treatment).
Given what you’ve learned in this week’s lecture, throughout this semester with each diagnosis, and what you came to the class knowing, do you agree with Szazs? Be specific in what you agree/disagree with and please explain your answer. If you agree with Szazs, then you must explain how society should approach individuals who are suicidal, homicidal and/or gravely disabled due to mental health issues in place of mandatory psycho holds.
Please never share more than you’re comfortable sharing and please do not disclose your own mental health diagnoses. This post should be a minimum of 200 words (worth 10 pts, due by 11:59pm Thursday). Your two responses to classmates should be a minimum of 100 words (worth 5 points each due by 11:59pm on Sunday).
Contemporary Issues in Psychopathology
Chapter 15
But first…
Please listen to the lecture for more in-depth info on California’s Law and procedures. It will help you in your assignments as well as life, should you bump into the mental health system someday.
The final is posted, please see the rubric in the assignment for directions on how to get the best grade possible.
I’ve opened your “Final Reflection”, which is due the Friday of Finals Week at 11:59pm
There are multiple 15pt Extra Credit opportunities in the last two Modules
These are all due before by the last Friday of the semester by 11:59pm (if you choose to do them)
Abnormal Bx in Childhood and Adolescents
The Rainman Twins
Behind 94 Acts of Violence, Years of Glaring Mistakes
Contemporary Issues in Psychopathology
15.1. Legal Issues Related to Mental Illness
15.2. Patient’s Rights
15.3. The Therapist-Client Relationship
California Law
Thomas Szasz
Legal Issues Related to Mental Illness
15.1
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
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.
Civil Commitment
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
Civil vs Criminal Commitment
Legal safeguards protect people’s civil rights in commitment proceedings.
Defendants have the right to due process and to be assisted by an attorney, for example.
However, when individuals are deemed to present a clear and imminent threat to themselves or others, the court may order immediate hospitalization until a formal commitment hearing can be held.
Such emergency powers are usually limited to a specific period, usually 72 hours
If a formal commitment petition is not filed with the court during this time, the individual has a right to be discharged
Not until 1979, did the U.S. Supreme Court rule—in Addington v. Texas—that in order for individuals to be hospitalized involuntarily, they must be judged both to be mentally ill and to present a clear and present danger to themselves or others.
Thus, people cannot be committed because of their odd behavior or eccentricity.
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
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
Assessment of “Dangerousness”
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)
Assessment of “Dangerousness”
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
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.
Procedures in Civil Commitment
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
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?
Criminal Commitment
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
Criminal Commitment
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
Criminal Commitment
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.
Criminal Commitment
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)
Criminal Commitment
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.
Insanity Defense
Perceptions of the use of the insanity defense tend to stray far from the facts.
Contrary to the common perception that the insanity defense is widely and often successfully used, it is in fact used rarely and usually is unsuccessful.
In actuality, it is raised in fewer than 1% of felony cases and succeeds in acquittals in a fraction of these cases, perhaps only about one quarter and far less in cases of homicide
In the wake of the Hinckley acquittal, a number of states adopted a new type of verdict, the guilty-but-mentally-ill (GBMI) verdict.
The GBMI verdict offers juries the option of finding that a defendant is mentally ill but that the mental illness did not cause the defendant to commit the crime.
People convicted under a GBMI statute go to prison but receive treatment while incarcerated.
Legal Basis of the Insanity Defense
Three major modern court rulings bear on the insanity defense.
An 1834 case in Ohio in which it was ruled that people could not be held responsible if they are compelled to commit criminal actions because of impulses they are unable to resist.
The M’Naghten rule, based on a case in England in 1843 of a Scotsman, Daniel M’Naghten, who had intended to assassinate the prime minister of England, Sir Robert Peel. Instead, he killed Peel’s secretary, whom he had mistaken for the prime minister. M’Naghten claimed that the voice of God had commanded him to kill Peel.
The M’Naghten rule holds that people do not bear criminal responsibility if, by reason of a mental disease or defect, they either have no knowledge of their actions or are unable to tell right from wrong.
The problem with the M’Naghten rule is that it focuses on lack of cognitive capacity to understand the difference between right and wrong and not on the ability to control one’s actions (Cevallos, 2015)
Legal Basis of the Insanity Defense
The third major case that helped lay the foundation for the modern insanity defense was Durham v. United States, 1954.
The verdict in this case held that the “accused [person] is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”
Under the Durham rule, juries were expected to decide not only whether the accused suffered from a mental disease or defect but also whether this mental condition was causally connected to the criminal act. The U.S. Court of Appeals recognized that criminal intent is a precondition of criminal responsibility:
“The legal and moral traditions of the western world require that those who, of their own free will and with evil intent . . . commit acts which violate the law, shall be criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect…moral blame shall not attach, and hence there will not be criminal responsibility.”
Legal Basis of the Insanity Defense
The intent of the Durham rule was to reject as outmoded the two earlier standards of legal insanity:
the irresistible impulse rule and the right–wrong (or M’Naghten) principle.
The court argued that the right–wrong test was outmoded because the concept of mental disease is broader than the ability to recognize right from wrong.
The legal basis of insanity thus should not be judged on just one feature of a mental disorder, such as deficient reasoning ability.
The irresistible impulse test was denied because the court recognized that in certain cases, criminal acts arising from “mental disease or defect” might occur in a cool and calculating manner rather than in the manner of a sudden, irresistible impulse.
Defendants may have known they were committing criminal acts, but were not driven to do so by an irresistible impulse (Sokolove, 2003).
Legal Basis of the Insanity Defense
The Durham rule, however, has proved to be unsuccessful for several reasons, such as a lack of precise definitions for terms such as mental disease or mental defect.
Courts were confused, for example, about whether a personality disorder (e.g., antisocial personality disorder) constituted a “disease.”
Also, juries found it difficult to draw conclusions about whether an individual’s “mental disease” was causally connected to the criminal act.
Without clear or precise definitions of terms, juries have come to rely on expert psychiatric testimony.
In many cases, verdicts simply endorsed the testimony of expert witnesses.
However, the psychiatrists’ juries relied upon as expert witnesses often disagreed with one another about a defendant’s diagnosis, rendering the Durham rule unworkable (Bazelon, 2015).
Legal Basis of the Insanity Defense
By 1972, the Durham rule was replaced in many jurisdictions by legal guidelines formulated by the American Law Institute (ALI) to define the legal basis of insanity (Van Susteren, 2002).
These guidelines, which essentially combine the M’Naghten principle with the irresistible impulse principle, include the following provisions (American Law Institute, 1962):
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 substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.
…The terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
Patient’s Rights
15.2
Patient’s Rights
The following are several rights that patients with mental illness have. They include:
Right to Treatment
Right to Refuse Treatment
Right to Less Restrictive Treatment
Right to Live in a Community
Rouse v. Cameron
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
Wyatt v. Stickney
Not until the 1972 landmark federal court case of Wyatt v. Stickney did a federal court establish a minimum standard of care to be provided by hospitals.
The case was a class action suit against Stickney, the commissioner of mental health for the state of Alabama, brought on behalf of Ricky Wyatt, an intellectually disabled young man, and other patients at a state hospital and school in Tuscaloosa.
The federal district court in Alabama held both that the hospital had failed to provide treatment to Wyatt and others and that living conditions at the hospital were inadequate and dehumanizing.
The court described the hospital dormitories as “barnlike structures” that afforded no privacy to the residents.
The bathrooms had no partitions between stalls, the patients were outfitted with shoddy clothes, the wards were filthy and crowded, the kitchens were unsanitary, and the food was substandard.
Wyatt v. Stickney
The case of Wyatt v. Stickney established certain patient rights, including the right not to be required to engage in work that is performed for the sake of maintaining the facility
The court held that mental hospitals must, at a minimum, provide the following (Wyatt v. Stickney, 1972):
A humane psychological and physical environment
Qualified staff in numbers sufficient to administer adequate treatment
Individualized treatment plans
The court established that the state was obliged to provide adequate treatment for people who were involuntarily confined to psychiatric hospitals
The court further ruled that to commit people to hospitals for treatment involuntarily and then not to provide treatment violated their rights to due process under the law
O’Connor v Donaldson
O’connor v Donaldson (1975) is another landmark in patients’ rights.
Donaldson, a former patient at a state hospital in Florida, sued two hospital doctors on the grounds that he had been involuntarily confined without receiving treatment for 14 years, although he posed no serious threat to himself or others.
Donaldson had been originally committed on the basis of a petition filed by his father, who had perceived him as delusional.
Although Donaldson received no treatment during his confinement and was denied grounds privileges and occupational training, his repeated requests for discharge were denied as well.
He was finally released when he threatened to sue the hospital.
Once discharged, Donaldson did sue his doctors and was awarded damages of $38,500 from O’Connor, the superintendent of the hospital.
The case was eventually argued before the U.S. Supreme Court.
O’Connor v Donaldson
Court testimony established that although the hospital staff had not perceived Donaldson to be dangerous, they had refused to release him.
The hospital doctors argued that continued hospitalization had been necessary because they had believed Donaldson was unlikely to adapt successfully to community living.
The doctors had prescribed antipsychotic medications, but Donaldson had refused to take them because of his Christian Science beliefs – as a result, he received only custodial care.
In 1975, the Supreme Court held in O’Connor v. Donaldson that “mental illness [alone] cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.”
O’Connor v Donaldson
There is no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.
The ruling addressed mentally ill patients who are not considered dangerous.
It is not yet clear whether the same constitutional rights would be applied to committed patients who are judged to be dangerous.
In its ruling in O’Connor v. Donaldson, the Supreme Court did not deal with the larger issue of the rights of patients to receive treatment.
The ruling does not directly obligate state institutions to treat involuntarily committed, nondangerous people because the institutions may elect to release them instead.
Patients have rights to privacy and to be treated with dignity.
Patients shall be treated under the least-restrictive conditions that can be provided to meet the purposes that commitment was intended to serve.
Patients shall have rights to visitation and telephone privileges unless special restrictions apply.
Patients have the right to refuse excessive or unnecessary medication. In addition, medication may not be used as a form of punishment.
Patients shall not be kept in restraints or isolation except in emergency conditions in which their behavior is likely to pose a threat to themselves or others and less-restrictive restraints are not feasible.
Patients shall not be subject to experimental research unless their rights to informed consent are protected.
Patients have the right to refuse potentially hazardous or unusual treatments, such as lobotomy, electroconvulsive shock, or aversive behavioral treatments.
Unless it is dangerous or inappropriate to the treatment program, patients shall have the right to wear their own clothing and keep possessions.
Patients have rights to regular exercise and to opportunities to spend time outdoors.
Patients have rights to suitable opportunities to interact with the opposite gender.
Patients have rights to humane and decent living conditions.
No more than six patients shall be housed in a room, and screens or curta
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