Mental Health Law_Zack Buck_Fall 2012
INTRODUCTION TO MENTAL HEALTH LAW
1. Introduction
a. Mental Health System is that constellation of services institutions and personnel involved in diagnosis, assessment, and treatment of emotional, psychological, or psychiatric disorders.
b. Four profound changes undergone in the last several decades
i. Larger percentage of population use mental health system due to:
· improvements in mental health treatment, decreased stigma associated with treatment, federal and state statutes that provide entitlements to care, expansion of definition of mental disorder
ii. Pharmacological advances have altered the treatment of serious mental illness by
· Medicinalized the nature of psychiatric practice, reducing the importance and the duration of institutionalization, fueling ethical debates over how much control patients should have over their treatment
iii. Where pharmacological treatment is not needed, non-medical personnel are taking place of psychiatrists
iv. Managed care creation has influenced the types and duration of mental health treatment and identity of those who provide it
c. Mental Disorder Finding
i. Is crucial to: (a) insurance coverage; (b) may establish an excuse or mitigation for crime; (c) form the predicate for involuntary civil commitment; (d) lead to a finding of incompetency; (e) qualify for various entitlements and protections against discrimination
d. DSM-IV
i. The diagnostic scheme contained therein is widely accepted
ii. The diagnostic scheme is based on two underlying precepts:
· Mental pathologies are not susceptible to precise definition because
o symptoms of a person suffering from a particular mental disorder are both changeable over time and frequently overlap with the symptoms of other mental disorders. Also psychologically detectible signs that are able to be clinically measured often don’t accompany mental disorders.
· The clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence, for legal purposes, of a mental disorder
2. DEFINITION OF MENTAL DISORDER
a. Book Sources to consider in answering if someone evidences symptoms of mental illness
i. (a) DSM definition of mental disorder; (b) Moore’s irrationality approach and Kendell’s biological disadvantages approach; (c) different etiological approaches to mental disorder; (d) Szasz’ critique of the mental disorder concept; and (e) the description of mental disorder in the surgeon general’s report
b. DSM-IV Definition
i. A clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress (e.g. a painful symptom) or disability (i.e. impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, disability, or an important loss of freedom
ii. The syndrome or pattern cannot be “an expectable and culturally sanctioned response to a particular event” (such as the death of a loved one)
iii. Drafters of DSM-IV admit that there is no definition to adequately specify the precise boundaries of mental disorder
c. Etiology – ie Source of Mental Disorder (theories)
i. Medical Model (p.9)
· Kandel – focus on biological basis for behavior. Environmental factors à alteration of gene expression
· Abnormal mental states result from abnormal psychological or mental conditions within the body.
· Focuses on the cause of mental illness. Relies on medical imaging and genetic testing.
· Book examples: schizophrenia, bipolar and mood disorders, depression, anti-social personality disorder, conduct disorder
o Five Principles listed on page 9
ii. Psychodynamic Theory = Radical Psychiatrist (p.10)
· Behavior is the product of underlying conflicts over which people often have scant awareness. [Mental disorders created by internal conflicts of which individual is unaware]
· Treatment approach: create patient awareness of conflict
· Freud’s theory of psychoanalysis is leading.
iii. Behavioral and Social Learning Theory
· Personality is the sum of reactions to outside stimuli.
· Treatment approach: behavior modification through conditioning.
· Behaviorism posits that personality is the sum of an individual’s observable responses to the outside world. JB Watson and BF Skinner are main.
iv. Book Notes
· Which Model the law prefers? (p.12, note 3)
o The Medical Model because the other two tend to focus more on external factors.
· Specific Disorders mentioned à anxiety, psychosis, mood disturbances
· Epidemology of mental disorder
o 28-30% of the American population suffers from a mental or addictive disorder
o 9% of population suffers significant impairment from these disorders
o Higher prevalence for mental disorder amongst African Americans over whites (possibly because poverty leads to them seeking treatment only when severe)
· Public perception of mental disorder incorporates violence more
3. DIAGNOSIS MENTAL DISORDER (DSM)
a. Source à DSM (p.19)
i. Book history given
· DSM-I: published in 1952
· DSM-II: published in 1958 (is unreliable)
· DSM-III: 1980
· DSM-IV: 2000
· DSM-V: 2012 projected publication
ii. Three caveats of DSM-IV
· Common misconcenption that a classification of mental disorders classifies people, when in actuality it is the mental disorder a person has. Therefore it’s “a person with schizophrenia” as opposed to “a schizophrenic”
· There is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries. There is no assumption that each person with the same disorder is alike in all important ways
· Clinical diagnosis is not sufficient to establish the existence for legal purposes of a mental disorder, mental disability, mental disease, or mental defect
iii. Criticisms of DSM
· Social and political influences (for example homosexuality)
· Diagnostic criteria is too broad making it a self-serving pathologizing of everyday behavior
· The treatment not the disorder gets treated
· Bias against non-western or minority cultures
b. DSM Categories – listed on page 17
c. Code of ethics (1982 APA Code)
i. The code hasn’t been updated so it’s still good
ii. Section on Forensic Ethics and Forensic Truthfulness
iii. Whenever necessary to avoid misleading psychologists acknowledge the limits of their data or conclusions
4. TREATMENT OF MENTAL DISORDER
a. History (p.22)
b. Impact of advances in pharmaceuticals and managed care programs (p.24)
i. From 1987-1997 various changes have occurred in the choice of therapy, the duration of therapy, and the diagnosis of those seeking psychotherapeutic treatment.
· Changes in treatment = (a) less therapy; (b) more drugs; (c) for different dx
c. Biological Therapies (p.25)
i. Treatment of Depression
· Four categories of drugs treat depression:
o (a) SSRI; (b) MAOI; (c) Tricyclic antidepressants; (d) miscellaneous drugs
· Electroconvuslive therapy (ECT)
ii. Treatment of Bipolar Disorders
· Bipolar disorder is characterized by episodes of depression and highs (ie a manic phase). Main treatment of choice is Lithium.
iii. Treatment of Schizophrenia
· Schizophrenia is a severe mental disorder characterized by psychotic symptoms (thought disorder hallucinations, delusion, paranoia) and impairment in job and social functioning. It affects more than two million Americans.
· A chronic condition characterized by episodic psychotic episodes. Initiation of medication regime is usually in response to an acute phase of the disease, and then the person takes maintenance doses.
o Side Effects of Anti-psychotic medication on p. 29**
iv. Treatment of ADD/ADHD
v. Treatment of Anxiety, Panic Disorders, and Phobia
EXPERTIESE ADMISSIBILITY & IMPLEMENTATION
5. Three categories of government intervention425
a. The government acts to deprive citizens of liberty or property under three theories
i. Punishment system:
· The goal of the government is to punish for past acts. The best example is the criminal justice process.
· Primarily concerned with gaging the defendant’s culpability. Only if a person is considered sufficiently culpable will he or she be sanctioned.
o Mental disorder is thought to diminish or eliminate one’s culpability. An individual’s responsibility for his or her acts is reduced, it is believed, to the extent mental disorder blunts perception and awareness or makes it difficult to control behavior.
ii. Prevention System
· Goal is to deprive individuals their liberty for purposes of preventing future harm to others or themselves. Intervention is authorized if it is predicted that harm may occur.
o For example post sentence detention of Sexual predators and civil commitment process).
o Not interested in culpability for past acts
· Mental disorder is relevant here because it may be related to a propensity towards harmful behavior directed at others or oneself. Its presence also allows the law to hypothesize that a person’s dangerousness can be “treated”.
iii. Protection system
· Government acts to prevent incompetent choices and ensure that individuals capably exercise rights and privileges. The focus is on one’s ability to perform certain functions at the present time.
o For example involuntary hospitalization of tho
i. Is the person competent to stand trial etc. (see later in semester)
ii. Clark (p. 589): Holds that expert testimony that provides mental disease or capacity evidence, as opposed to observable evidence, may constitutionally be excluded .
f. Clark v. Arizona 587
i. F: Paranoid Schizophrenic killed a cop who pulled him over because he thought the cop was an alien, then ran off. No debate between parties that he has the diagnosis. Eric Clark’s story is interesting because it shows: that you can be sane, but also have no mens rea under a statute.
· Facts
o He was in truck playing loud music: state says he was trying to lure cops, defense said he was trying to play loud music to block out the loud voices in his head
o He ran after and tried to hide the gun.
· Insanity defense under AZ law here foreclosed (just have to know what you are doing is wrong and you are sane) – he knew what he was doing was wrong. Diminished capacity question is whether he really thought he was shooting a law enforcement officer.
ii. Q: Can he put experts on as testimony to his diminished capacity?
iii. Held: Arizona statute/law passes due process muster and can limit the right to expert testimony for capacity (ie clinical evidence for this stage of the trial).
· Ramifications: Because of this holding a person in Clark’s position can’t bring in any evidence that he is really schizophrenic because the defendant can bring in observational evidence from lay people but nothing clinical!! So the jury never knows he’s diagnosed. Bad Bad Bad!!!
o By allowing states to squeeze both mens rea and insanity defense, people are going to jail because the jury never hears the full story.
· AZ has right to determine what type of insanity defense they have.
o Each defendant starts with the presumption of sanity, and the defendant can attack the presumption via insanity or diminished capacity (ie via mens rea). The state can restrict which of these two options they allow.
o This is weird for two reasons: in criminal court we usually put everything on the plaintiffs – so a presumption against defense is strange. Also Weird reasoning because here we aren’t talking about insanity defense.
· States that restrict their insanity defense have to also restrict their ability to attack mens rea because it’s circular (ie not insane but also don’t meet mens rea) or else defendants will easily walk. à footnote 45 on p. 595
o These defendants are between rock and hard place if neither allowed.
· This type of evidence needs to be channeled into the insanity issue
o Confuses juries
o Controversial in medical science
o Shouldn’t have all this persuasive authority when they are just opinions – fraught with peril and misleads jury
· So why do we allow this evidence, despite reasons, for insanity but not capacity?
o Because a) the defendant will walk if mens rea not shown as opposed to mental institution under defense and b) because the burden will be on defendant to show all this so it’s up to the defendant to meet the burden
g. Delling v. Idaho (2002, S.Ct. denies cert) (handout)
i. Justice Breyer wrote a dissent to the supreme court cert. denial. Idaho does not have an insanity defense, but allows the defendant to bring in evidence at trial and sentencing of mental illness. If the subject, at sentencing is found to be mentally ill then the judge may send him to a hospital.
· Justice Breyer explains that if a defendant knows he is shooting a human being, but does it because of a delusion that defendant will still have the mens rea. However, if the person shoots a human thinking that it is a wolf, he will not have the requisite mens rea. The case comes down to the content of the delusion.
ii. Comparison to Clark
· The statute in Clark is more stringent – in Idaho there is a right to bring in mens rea challenges. The problem is, as Breyer points out, that if you bring these cases in under the mens rea then there may be some odd results. Courts clearly seem to be ok with not having the insanity defense as well.
· Note that a lot of mental health advocates actually advocate for a mens rea defense.
