{"id":4209,"date":"2018-09-18T17:24:59","date_gmt":"2018-09-18T21:24:59","guid":{"rendered":"https:\/\/www.amyork.ca\/academic\/zz\/?p=4209"},"modified":"2019-05-26T00:06:40","modified_gmt":"2019-05-26T04:06:40","slug":"legal-and-ethical-issues","status":"publish","type":"post","link":"https:\/\/www.amyork.ca\/academic\/zz\/abnormal-psychology\/legal-and-ethical-issues\/","title":{"rendered":"Legal and Ethical Issues"},"content":{"rendered":"<ul>\n<li>Bill of rights: first 10 amendments to the constitution<\/li>\n<li>Maximize degree of liberty consistent with preserving order in the community at large<\/li>\n<li><strong>Criminal commitment<\/strong> = a procedure that confines a person in a mental or forensic hospital either for determination of competency to stand trial or after acquittal by reason of insanity o For someone with a psychological disorder who has broken the law\/alleged to have done so<\/li>\n<li><strong>Civil commitment<\/strong> = a set of procedures by which a person who is deemed mentally ill and dangerous but has not broken a law can be deprived of liberty and placed in a hospital<\/li>\n<li><strong>Criminal Commitment<\/strong>\n<ul>\n<li><strong>Insanity<\/strong> = a disordered mind *may be regarded as unable to formulate and carry out a criminal purpose o Cannot be a guilty mind<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>&nbsp;<\/p>\n<p>Defined in court proceedings The Insanity Defense<\/p>\n<ul>\n<li><strong>Insanity defense<\/strong> = the legal argument that a defendant should not be held responsible for an illegal act if it is attributable to a psychological disorder or intellectual disability that interferes with rationality or that results form some other excusing circumstance, such as not knowing right from wrong<\/li>\n<li>Pleaded in less than 1% of all cases that reach trial<\/li>\n<li>Rarely successful when pleaded, only 7% success rate<\/li>\n<li>Based on accused\u2019s mental condition at the time crime was committed<\/li>\n<li>Insanity defense has been around since the 7<sup>th<\/sup> century BCE<\/li>\n<\/ul>\n<p>Landmark Cases and Laws<\/p>\n<ul>\n<li><strong>Irresistible<\/strong> <strong>Impulse<\/strong>:\n<ul>\n<li>= If a pathological impulse or uncontrollable drive compelled the person to commit the criminal act, an insanity defense is legitimate<\/li>\n<li>Test was confirmed in 2 court cases: Parsons v. State and Davis v. United States \uf0b7 <strong>The<\/strong> <strong>M\u2019Naghten<\/strong> <strong>Rule<\/strong>:<\/li>\n<li>Formulated in the aftermath of a murder trial in England, defendant has set out to kill the Prime Minister, but had mistaken his secretary for the PM, claimed he had been instructed to kill the PM by the voice of God<\/li>\n<li>To establish defense of insanity, must be proved that at time of crime, accused party was under a defect of reasoning (disease of mind), and did not know nature\/quality of act he was doing\n<ul>\n<li>If he had known what he was doing, he didn\u2019t know it was wrong \uf0b7 The Durham Test:<\/li>\n<\/ul>\n<\/li>\n<li>Durham v. United States<\/li>\n<li>A person is not responsible for a crime if it was \u201cthe product of mental disease or mental defect\u201d<\/li>\n<li>Definition of mental disease\/defect open to jurisdictions and mental health professionals to decide<\/li>\n<li>Only used by New Hampshire \uf0b7 American Law Institute Guidelines:<\/li>\n<li>ALI proposed its own guidelines, intended to be more specific and informative o Aka \u201cMoral penal code\u201d\n<ul>\n<li>1) 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 of his conduct or conform his conduct to the requirements of law<\/li>\n<li>2) The terms \u201cmental disease\/defect\u201d do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct<\/li>\n<\/ul>\n<\/li>\n<li>First guideline combines M\u2019Naghten rule and irresistible impulse \uf0b7 Insanity Defense Reform Act:<\/li>\n<li>John Hinckley Jr. found not guilty by reason of insanity (NGRI) for assassination attempt against President Ronald Reagan<\/li>\n<li>Many committed to mental hospital stay there longer than would have stayed in prison o As a consequence of political pressures to get tough on criminal, congress enacted the<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>Insanity Defense Reform Act<\/p>\n<ul>\n<li>Addressed insanity defense at federal level for the first time<\/li>\n<\/ul>\n<p>1) Eliminates irresistible-impulse component of the ALI rules<\/p>\n<p>2) Changes the ALI\u2019s \u201clacks substantial capacity\u2026to appreciate\u201d to \u201cunable to appreciate\u201d *tightens the grounds for an insanity defense, making criteria for impairment judgment more stringent<\/p>\n<p>3) Stipulates that mental disease\/defect must be severe<\/p>\n<p>\uf0b7 No longer can use defense \u201cdiminished capacity\u201d or \u201cdiminished responsibility\u201d based on mitigating circumstances as extreme passion or temporary insanity<\/p>\n<p>4) Shifts the burden of proof from prosecution to defense *defense must prove the defendant insane, with clear and convincing evidence<\/p>\n<p>5) Person may remain committed longer than the ordinary sentence, released only when deemed by professionals to be no longer dangerous and no longer mentally ill \uf0b7 Current Insanity Pleas:<\/p>\n<ul>\n<li><strong>Not guilty by reason of insanity<\/strong> (NGRI) = there is no dispute over whether the person actually committed the crime \u2013 both sides agree that the person committed the crime\n<ul>\n<li>Due to the person\u2019s insanity at the time, the defense argues that the person should not be held responsible for and thus should be acquitted of the crime<\/li>\n<li>Successful: person not held responsible due to psychological disorder<\/li>\n<li>Committed indefinitely to forensic hospital, released only when deemed no longer dangerous and no longer mentally ill<\/li>\n<li>Forensic hospital perimeter is secure with gates, barbed wires, or electric fences, doors to different units may be locked, bars may be placed on windows, security doesn\u2019t carry weapons or wear uniforms<\/li>\n<li>Someone found NGRI could not remain committed if no longer mentally ill, even if still considered dangerous<\/li>\n<\/ul>\n<\/li>\n<li><strong>Guilty but mentally ill<\/strong> (GBMI) = allows an accused person to be found legally guilty of a crime \u2013 thus maximizing the chances of incarceration \u2013 but also allows for psychiatric judgment on how to deal with the convicted person if he\/she is considered to have been mentally ill at time of crime\n<ul>\n<li>Usually put in general prison population, may or may not receive treatment<\/li>\n<li>May be committed to mental hospital if still considered dangerous\/mentally ill after sentence is over<\/li>\n<li>g. Jeffery Dahmer \u2013 accused of and admitted to butchering, cannibalizing and having sex with the corpses of 15 boys and young men, entered plea of guilty, attorneys argued disorder should be considered during sentencing<\/li>\n<li>Critics argue that it doesn\u2019t benefit criminals with psychological disorders, and doesn\u2019t result in appropriate treatment<\/li>\n<li>Some believe GMBI is not as tough as a guilty verdict, but people receiving GBMI verdict often spend more time incarcerated<\/li>\n<\/ul>\n<\/li>\n<li>Standards of Proof (table 16.2) o Beyond a reasonable doubt \u2013 95% certainty needed to convict o Clear and convincing evidence \u2013 75%\n<ul>\n<li>Beyond a preponderance of the evidence \u2013 51%<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>Competency to Stand Trial<\/p>\n<ul>\n<li>Insanity defense concerns accused\u2019s mental state at the time of the crime<\/li>\n<li><strong>Competency to stand trial<\/strong> = whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him<\/li>\n<li>Must be decided before it can be determined whether a person is responsible for the crime which he\/she is accused<\/li>\n<li>Pate v. Robinson \u2013 the defense attorney, prosecutor, or judge may raise the question of the psychological disorder whenever there is reason to believe that the accused person\u2019s mental condition might interfere with his\/her upcoming trial<\/li>\n<li><strong>In absentia<\/strong> \u201cnot present\u201d = a centuries old principle of English common law that refers to the person\u2019s mental state, not his\/her physical presence o Trial can be delayed, accused person placed in hospital with hopes of restoring adequate mental function<\/li>\n<li>Being deemed mentally ill doesn\u2019t necessarily mean cannot stand trial<\/li>\n<li>Being judged incompetent to stand trial has consequences for individual:\n<ul>\n<li>Bail is automatically denied, person usually kept in hospital for pretrial examination (supposed to receive treatment to become competent to stand trial), person may lose employment, undergo trauma from being separated from family\/friends\/familiar surroundings<\/li>\n<\/ul>\n<\/li>\n<li>Jackson v. Yates \u2013 deaf and mute man with intellectual disability, deemed unlikely to ever be competent to stand trial o If deemed not ever competent, state must either institute civil commitment or release the defendant\n<ul>\n<li>Cannot be committed to process of determining competency that exceeds longest possible sentence<\/li>\n<li>Most people deemed competent in about 6 months<\/li>\n<\/ul>\n<\/li>\n<li>Can proceed in trial with \u201csynthetic sanity\u201d due to medication<\/li>\n<li>Cannot forced defendant to take medication, until 2003***new ruling, can be used only if alternative treatments had failed<\/li>\n<li>Medications are often the most effective means of restoring competency<\/li>\n<\/ul>\n<p>Insanity, Intellectual Disability, and Capital Punishment<\/p>\n<ul>\n<li>Should someone who is sentenced to death have to be legally sane at the time of the execution?<\/li>\n<li>Daryl Atkins \u2013 intellectual disability and capital punishment \u2013 lacked understanding of consequences of actions, not morally culpable for acts as a person of normal intelligence *capital punishment would be unconstitutional o Ruled that capital punishment of those with intellectual disability constitutes cruel and unusual punishment (8<sup>th<\/sup> amendment prohibits)\n<ul>\n<li>State of Virginia defined intellectual disability as IQ of 70 or less along with difficulties in selfcare and social interaction ***varies from state-to-state<\/li>\n<\/ul>\n<\/li>\n<li>Supreme Court 2014 \u2013 intellectual disability cannot be determined solely on the basis of IQ score, must also include assessments of adaptive functioning over the lifetime<\/li>\n<\/ul>\n<p><strong>Civil Commitment<\/strong><\/p>\n<ul>\n<li style=\"list-style-type: none;\">\n<ul>\n<li>Governments have a duty to protect their citizens from harm<\/li>\n<li>Right and obligation to protect us both from ourselves, <strong>parens patriae<\/strong>, \u201cpower of the state\u201d &amp; from others, the police power of the state<\/li>\n<li>A person can be committed to a hospital against his\/her will if judgment is made that he\/she is: o 1) Mentally ill and, 2) A danger to self (suicidal or unable to provide for basic physical needs) or to others\n<ul>\n<li>Dangerousness to others is more often the principle criterion in court rulings \uf0b7 Civil commitment is supposed to last only as long as the person remains dangerous \uf0b7 Formal and informal commitment procedures:<\/li>\n<li>Formal (judicial) commitment is by order of a court, can be requested by any responsible citizen\n<ul>\n<li>Judge will order mental health examination if believes there is a good reason to<\/li>\n<li>Person has the right to object the these attempts, court hearing scheduled to allow person to present evidence against commitment<\/li>\n<\/ul>\n<\/li>\n<li>Informal (emergency) commitment can be accomplished without involving the courts initially\n<ul>\n<li>If hospital board believes a person requesting discharge is too mentally ill and dangerous, can detain the person with a temporary, informal commitment order<\/li>\n<li>Police can take any person acting out-of-control or in a dangerous manner to a psychiatric hospital<\/li>\n<li>Most common is the Physician\u2019s Certificate (PC) \u2013 physician can sign a certificate that allows a person to be hospitalized for some period between 24 hours to 20 days \uf0b7 Affects more people than criminal commitment<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>Preventative Detention and Problems in the Prediction of Dangerousness<\/p>\n<ul>\n<li>Not the case that people with psychological disorders account for a significant proportion of the violence that besets society<\/li>\n<li>3% of US violence is linked to psychological disorders<\/li>\n<li>Over 90% diagnosed with psychotic disorders (mostly schizophrenia) are not violent<\/li>\n<li>MacArthur Violence Risk Assessment Study \u2013 large prospective study of violent behaviour in persons recently discharged from psychiatric hospitals o People with psyc disorders who did not also abuse substances were no more likely to engage in violence that are people without psyc disorders and substance abuse\n<ul>\n<li>When people with psyc disorders do act aggressively, usually against family\/friends, and at home<\/li>\n<li>People with psyc disorders report more violent thoughts in hospital<\/li>\n<li>People with psyc disorder more likely to be aggressive if have positive or disorganization symptoms of schizophrenia or also abusing drugs<\/li>\n<li>Issues of substance abuse rather than psychotic disorders are the main contributory factors to violence<\/li>\n<\/ul>\n<\/li>\n<li>The Prediction of Dangerousness:\n<ul>\n<li>Mental health professionals are poor at making a judgment of whether or not a person will commit a dangerous act<\/li>\n<li>Historical-Clinical-Risk Management-20 (HCR-20) \u2013 identifies and measures violence risk factors based on clinical judgment<\/li>\n<li>Most accurate under the following conditions:\n<ul>\n<li>1) If a person has been repeatedly violent in the recent past, it is reasonable to predict that he\/she will be violent in future unless there are major changes in person\u2019s attitude\/environment<\/li>\n<li>2) If violence is in the person\u2019s distant past, and if it was a single and very serious act, and if that person has been incarcerated for a period, violence can be expected on release if there is reason to believe that the person\u2019 pre-detention personality and physical abilities have not changes, and returning to same environment<\/li>\n<li>3) With no history of violence, violence can be predicted if person is judged to be on brink of violent act<\/li>\n<\/ul>\n<\/li>\n<li>Violence with psychological disorder more likely if not being treated<\/li>\n<li><strong>Assisted outpatient treatment<\/strong> (AOT) = an arrangement whereby a person is mandated by the court to receive treatment on an outpatient basis\n<ul>\n<li>Can expect violence to be reduced and increases compliance with medication<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>Protection of the Rights of People with Psychological Disorders<\/p>\n<ul>\n<li>1970 Supreme Court: Addington v. Texas \uf0e0 state must produce clear and convincing evidence that a person is mentally ill and dangerous before he or she can be involuntarily committed to a psychiatric hospital<\/li>\n<li>Least Restrictive Alternative:\n<ul>\n<li><strong>Least restrictive alternative<\/strong> to freedom \u2013 provided when treating people with psyc disorders and protecting them form harming themselves and others<\/li>\n<li>Only those who cannot be adequately looked after in less restrictive settings be placed in hospitals<\/li>\n<li>Restrict the person\u2019s liberty to the least possible degree while remaining workable o Unconstitutional to confine a person who is non-dangerous and who is capable of living on his\/her own or with help of willing family\/friend \uf0b7 Right to Treatment: o If a person is deprived of liberty because he or she is mentally ill and is a danger to self or others, is the state not required to provide treatment?<\/li>\n<li>Wyatt v. Stickney \u2013 treatment is the only justification for the civil commitment of people with a psyc disorder to a psychiatric hospital *ensures protection of people confined by civil commitment<\/li>\n<li>O\u2019Connor v. Donaldson \u2013 civilly committed man sued 2 state hospital doctors for his release &amp; for monetary damages on the grounds that he had been kept against his will for 14 years without being treated &amp; w\/o being dangerous<\/li>\n<li>A civilly committed person\u2019s status must be periodically reviewed \uf0b7 Right to Refuse Treatment:<\/li>\n<li>As many as 1\/3 of individuals who take medications do not benefit from them o Can refuse treatment due to protection of freedom from physical invasion, freedom of thought &amp; right to privacy<\/li>\n<li>Government cannot force antipsychotic drugs on a person on the supposition that at some future time he or she might become dangerous<\/li>\n<li>Must be a very good reason to deprive a person of liberty and force medication \u2013 threat to others<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>Deinstitutionalization, Civil Liberties, and Mental Health<\/p>\n<ul>\n<li><strong>Deinstitutionalization<\/strong> = discharging as many peoples as possible from hospitals and discouraging admissions<\/li>\n<li>2010 \u2013 about 14 psychiatric hospital beds for every 100,000 people in the US (compared to 350 in 1955)<\/li>\n<li>We need about 50\/100,000 to meet the needs of people with psychological disorders<\/li>\n<li><strong>Transinstitutionalization<\/strong> \u2013 declines in number of psychiatric hospital beds have lead to increases in presence of people with psyc disorders in nursing homes, mental health departments of non-psyc hospitals and prisons o These settings are not equipped to handle to particular need of these people<\/li>\n<li>2007 \u2013 17-30% of people in prison had serious psyc disorder<\/li>\n<li>Police officers are often the first to come in contact with person with psyc disorder, make decision of hospital or jail<\/li>\n<li>Mobile crisis units consisting of trained mental health professionals who work in junction with police to find the best option for a person with a psyc disorder<\/li>\n<li>Funding to properly train police \u2013 Mentally Ill Offender Treatment and Crime Reduction Act<\/li>\n<li>Mental health courts in local communities<\/li>\n<li>Consensus Project \u2013 increases awareness of number of people with psyc disorders who are housed in jails rather than treatment facilities<\/li>\n<\/ul>\n<p><strong>Ethical Dilemmas in Therapy and Research<\/strong><\/p>\n<ul>\n<li style=\"list-style-type: none;\">\n<ul>\n<li>Ethics statements designed to provide an ideal, to review moral issues of right and wrong that may\/may not be reflected in the law<\/li>\n<li>APA has a code of ethics \u2013 includes ethical standards that constrain research and practice in psychology<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>Ethical Restraints on Research<\/p>\n<ul>\n<li>Citizens who participate in research experiments must be protected from unnecessary harm, risk, humiliation and invasion of privacy<\/li>\n<li>Nuremberg trials conducted by allies following WWII put German physicians on trial who ran cruel experiments on concentration camp inhabitants<\/li>\n<li>Nuremberg Code (1947), Declaration of Helsinki (1964)<\/li>\n<\/ul>\n<p>Informed Consent<\/p>\n<ul>\n<li><strong>Informed consent<\/strong> = investigator must provide enough information to enable people to decide whether they want to be in a study<\/li>\n<li>Must describe the study clearly, including any risks involved<\/li>\n<li>Must be no coercion in obtaining informed consent<\/li>\n<li>Must understand that have the right to not take part in the study or to withdraw at any point, without fear of penalty<\/li>\n<li>A health professional can assess whether or not an individual is able to give informed consent<\/li>\n<li>If a guardian gives consent on behalf on an individual, guardian\u2019s ability to provide that consent should be assessed<\/li>\n<li>People with psyc disorders are not necessarily incapable of giving informed consent<\/li>\n<\/ul>\n<p>Confidentiality and Privileged Communication<\/p>\n<ul>\n<li><strong>Confidentiality<\/strong> = nothing will be revealed to a third party except for other professionals and those intimately involved in the treatment<\/li>\n<li><strong>Privileged communication<\/strong> = communication between parties in a confidential relationship that is protected by law<\/li>\n<li>Recipient cannot be legally compelled to disclose it as a witness o Applies to relationships between husbands\/wives, physician\/patient, pastor\/penitent, attorney\/client, psychologist\/patient\n<ul>\n<li>Only he or she may release the other person to disclose confidential information in a legal proceeding \uf0b7 There are limits:<\/li>\n<li>If person has accused the therapist of malpractice \u2013 can divulge info about therapy in selfdefense<\/li>\n<li>If the person is less than 16 years old and therapist has reason to believe that the child has been a victim of a crime (e.g. child abuse) *psychologist is required to report to police to child welfare within 36 hours any suspicion<\/li>\n<li>If the person initiated therapy in hopes of evading the law for having committed a crime or for planning on doing so<\/li>\n<li>If the therapist judges that the person is a danger to self or others and disclosure of info is necessary to ward off danger<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"<p>Bill of rights: first 10 amendments to the constitution Maximize degree of liberty consistent with preserving order in the community at large Criminal commitment = a procedure that confines&hellip; <a class=\"continue\" href=\"https:\/\/www.amyork.ca\/academic\/zz\/abnormal-psychology\/legal-and-ethical-issues\/\">Continue Reading<span> Legal and Ethical Issues<\/span><\/a><\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[104],"tags":[],"_links":{"self":[{"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/posts\/4209"}],"collection":[{"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/comments?post=4209"}],"version-history":[{"count":1,"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/posts\/4209\/revisions"}],"predecessor-version":[{"id":4890,"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/posts\/4209\/revisions\/4890"}],"wp:attachment":[{"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/media?parent=4209"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/categories?post=4209"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.amyork.ca\/academic\/zz\/wp-json\/wp\/v2\/tags?post=4209"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}