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Mental Health Law
University of Toledo School of Law
Kennedy, Robin M.

Mental Health Law
1)      Forensic Psychiatry
a.       Sadoff, Practical Issues in Forensic Psychiatry Practice
b.      Mossman, Is Expert Psychiatric Testimony Fundamentally Immoral?
2)      Jurisprudential Concerns
a.       Hueristics and “Ordinary Common Sense”
b.      Sanism – stereotyping on basis of diagnosis of a medical condition; subjecting someone to some disqualification or lesser right b/c of that attitude
c.       Pretextuality – idea that Dr’s can predict dangers or that judges in-fact can know when someone will be dangerous in the future. What’s the connection btw a mental disorder and future dangerousness?
d.      Therapeutic Jurisprudence – extent to which TJ can help. How do these systems fall on people? (of Civil Commitment)
                                                               i.      Wexler, TJ: The Law as a Therapeutic Agent
                                                             ii.      Perlin, TJ and the Civil Rights of Institutionalized Mentally Disabled Persons: Hopeless Oxymoron or Path to Redemption?
                                                            iii.      Winick, Side Effects of Incompetency Labeling and the Implications for Mental Health Law
3)      Recent Developments
a.       International Human Rights
Constitutional “Civil” Mental Health Law
1)      Involuntary Civil Commitment
a.       Applying the Constitution
                                                              i.      Jackson v. State of Indiana (Sup Ct – 1972)
1.       IN couldn’t have civilly committed w/o a showing of mental illness or that the person is in need of care, treatment, training or detention.
a.       If feeble-minded, eligible for release when condition justifies it
b.      If civilly-committed, eligible when “cured”
2.       Harm is great where a state makes a commitment permanent when standards applicable to others would afford them the opportunity for release.
a.       Condemning to permanent institutionalization w/o showing required for commitment or the opportunity for release is a deprivation of EP under the 14A.
3.       Due Process – convicted criminals up for release can only be committed if the prisoner is 1) mentally incompetent or insane and 2) will probably endanger the safety of officers/property, etc and care of the prisoner are not otherwise available
a.       Must be released when no longer dangerous
4.       W/O a finding of dangerousness, one committed can be held only for a R period of time necessary to determine whether there is a substantial chance of attaining his capacity to stand trial.
5.       Due Process requires that the nature and duration of the commitment bear some reasonable relation to the purpose for which the individual is committed. 
a.       Ct doesn’t use heightened scrutiny.
b.      Mostly going to be Rational Basis analysis.
6.       A person charged w/ a criminal offense committed solely on account of his incapacity to proceed at trial, cannot be held more than the R period of time necessary to determine whether there is a substantial probability that he will attain that capacity.
a.       If not, State must institute the civil commitment proceeding.
7.       *Someone is charged w/ a crime, and automatically referred for evaluation, and THEN gets a hearing … why the deprivation?*
a.      Should have the commitment hearing right away (Kennedy)
                                                                                                                                       i.      Lessard = 48 hours
                                                                                                                                     ii.      French = much longer
                                                                                                                                    iii.      S.Ct. = never opined
b.      Have to give him whatever DP another civil committee gets.
c.       Gets the same EP as well
                                                            ii.      O’Connor v. Donaldson
1.       Even if authorized to confine the harmless mentally ill, it does not establish a constitutionally adequate purpose for the confinement.
a.       Not enough that the original confinement was founded upon a constitutionally adequate basis – even if his involuntary confinement was initially permissible, it could not continue when that basis no longer existed.
b.      Mental illness alone cannot justify a state’s locking a person up against his will indefinitely.
                                                                                                                                       i.      State can’t confine a nondangerous individual who is capable of surviving by himself or with willing and responsible friends/family.
2.       “A finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement… In short, a state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.”
a.       Dangerousness needs to be imminent (Kennedy)
3.       Remedies
a.       Damages
                                                                                                                                       i.      Newly created right – couldn’t have known or be expected to know that you are violating it.
4.       BURGER – concurrence
a.       Involuntary commitment (IC) is a deprivation of a liberty interest, can’t be done without DP of law.
                                                                                                                                       i.      Need a legit state interest
                                                                                                                                     ii.      Confinement ceases when the reason/basis ceases.
b.      Traditional bases for civil commitment
                                                                                                                                       i.      Physical dangerousness and a need for treatment
c.       States CAN under the police power confine people solely to protect society from the dangers of antisocial acts or communicable disease.
                                                                                                                                       i.      ALSO can protect under the parens patriae power, including the duty to protect ‘persons under legal disabilities to act for themselves.’
5.       Impact of O’Connor
                                                          iii.      Lessard v. Schmidt (U.S. Dist Ct – 1972) (commitment occurs only when person poses imminent danger to self or others)
1.       To deprive a person of a fundamental liberty (to go unimpeded) must rest on a consideration that society has a compelling interest in such deprivation.
a.       Criminal cases à rests on police power w/ stringent procedural safeguards
b.      Commitment procedures à same concerns, but these procedures have not assured the DP safeguards that are accorded to those of crime.
                                                                                                                                       i.      Justified under parens patriae, NOT to punish but to treat
2.       Requirements of DP are not static, they depend upon the importance of the interests involve and the proceedings.
a.       Ne

tantial and Imminent?
2.       When civil commitment is used to vindicate a societal interest rather than merely further the interest of the mentally ill person, it constitutes the use of police powers.
a.       State must exercise this authority by means “rationally related” to achieving the purpose of furthering “legitimate public interests”
3.       Little unanimity in crafting a unitary definition of dangerousness
a.       Brooks 4 components/elements: magnitude of harm, probability that it will occur, frequency with which it will occur, imminence of harm.
b.      Hidday’s 5 dimensions: type of behavior, frequency, recency, severity, object of behavior
                                                            ii.      Dangerousness and Lessard
1.       NJ. v. Krol
a.       Commitment following acquittal by reason of insanity is not intended to be punitive…there is, in effect, no crime to punish.
b.      The standard for commitment must bear a reasonable relationship to the ostensible purpose for which the individual is committed.
c.       Can’t change the standard for involuntary commitment b/c the person has committed a crime in the past.
d.      The standard for commitment based on dangerousness is “dangerous to self or society.”
                                                                                                                                       i.      Dangerous conduct is not identical with criminal conduct.  
                                                                                                                                     ii.      Persons are not to be indefinitely incarcerated because they present a risk of future conduct which is merely socially undesirable.
e.      Determination of dangerousness involves prediction of defendant’s future conduct rather than mere characterization of his past conduct.
                                                                                                                                       i.      Defendant’s past conduct is important evidence as to his probable future conduct.
                                                                                                                                     ii.      It is appropriate for the court to give substantial weight to the nature and seriousness of the crime committed by defendant and its relationship to his present mental condition.
f.        Dangerousness must be imminent
                                                                                                                                      i.      Also, must be some significant harm
                                                            iii.      Overt Acts – Lessard demands an overt act as a prerequisite to a valid involuntary civil commitment. (Not all states have enacted this requirement, that there be some behavior (past) that the court could use to predict future behavior)
a.       Rule of Evidence 703: Personal knowledge (expert) or offered into evidence.
2.       Seltzer v. Hogue