© Cengage Learning 2016 © Cengage Learning 2016 Law and Ethics in Abnormal Psychology 17
© Cengage Learning 2016 © Cengage Learning 2016
Law and Ethics in Abnormal Psychology
17
© Cengage Learning 2016
• Some roles of psychologists in the legal system– Psychological evaluation in child protection
matters
– Evaluation for child custody in divorce proceedings
– Civil commitment determination
– Protecting client rights
– Profiling criminals
The Intersection of Psychology and the Law
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• Assessing dangerousness
• Filing amicus briefs
• Aiding jury selection
• Determining sanity or insanity
• Providing testimony in malpractice suits
• Determining competency to stand trial
• Determining repressed, recovered, or false memories
Additional Roles and Activities of Psychologists in the Legal System
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• Incarceration of an individual for having committed a crime
• Criminal law– Some people lack the ability to assist in their
own defense or discern the ramifications of their actions because they are mentally disturbed
– Although they may be guilty of a crime, their mental state at the time of the offense exempts them from legal responsibility
Criminal Commitment
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• Refers to a defendant’s mental state at the time of post-arrest psychiatric evaluation
• Requirements to stand trial by federal law– Defendant must have a factual and rational
understanding of the proceedings
– Defendant must be able to rationally consult with counsel in presenting his or her own defense
• Defendant cannot be confined indefinitely solely on the grounds of incompetency
Competency to Stand Trial
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Legal Standards that Address the Mental State of the Defendant
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• Legal argument used by defendants– Admit they committed a crime
– Plead not guilty because they were not of sound mind at the time the crime was committed
• Legal tests of insanity– The “right-wrong” test
– The irresistible impulse test
Legal Precedents Regarding the Insanity Defense
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• Person can be acquitted if it can be shown that at the time of the act:– The defendant had such defective reasoning
that they did not know what they were doing (nature of the act)
– The defendant was unable to comprehend that the act was wrong (quality of the act)
• Criticism– Exclusively cognitive test
M’Naghten Rule (“Right-Wrong Test”)
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• Defendant is not criminally responsible if he or she lacked the will power to control his or her behavior
• Criticism– What constitutes irresistible impulse?
• Durham standard (the products test)– Accused is not responsible if the unlawful act
was the product of mental disease or defect
Irresistible Impulse Test
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• Guidelines established in 1962
• Mental disease or defect– Impairs capacity to appreciate the criminality
of conduct• Or to conform conduct to the requirements of law
– Does not include abnormality manifested by repeated criminal or otherwise antisocial conduct
Guidelines from the American Law Institute (ALI) Model Penal Code
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• Absence of specific intent to commit offense– As a result of mental impairment
• Used primarily to guide sentencing and disposition of defendants
• Sometimes introduced in the trial phase
The Law of Diminished Capacity
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• Insanity Defense Reform Act of 1984– Bases definition of insanity totally on the
individual’s ability to understand what he or she did
• Some states adopted alternative pleas– Culpable and mentally disabled
– Mentally disabled, but neither culpable nor innocent
– Guilty, but mentally ill
Insanity Defense Reform
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• Insanity defense mostly used by defendants who have a long history of mental illness
• Determination of guilt can be complicated– Factor: severity of the defendant’s illness
• Deliberate delays– “Feigning” insanity rarely successful
• Past hospitalizations and medical diagnoses usually present
Contemporary Views on the Insanity Defense
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• Parens patriae (“father of the country”)– Government’s authority to commit disturbed
individuals for their own best interest
• Civil commitment – Involuntary confinement of a person judged to
be a danger to self or others• Even though the person has not committed a crime
– May be viewed as protective confinement
Civil Commitment
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• Major interruption in a person’s life
• Loss of self-esteem and self concept
• Dependency on others
• Possible loss or restriction of civil liberties
Negative Consequences of Civil Commitment
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• Criteria vary by state– Clear and imminent danger to self or others
– Inability to care for oneself or lack of social network to provide such care
– Inability to make responsible decisions about appropriate treatment or hospitalization
– Unmanageable state of fright or panic
Criteria for Commitment
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• Key factors– The rarer something is, the more difficult it is
to predict
– Violence is a function of both context and a person’s characteristics
– The best predictor of dangerousness is past criminal conduct or history of violence or aggression
– The definition of dangerousness is unclear
Assessing Dangerousness
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• Involuntary confinement rationale– Prevents harm to person or others
– Provides appropriate treatment and care
– Ensures due process of law
• Involuntary commitment is used when the individual refuses hospitalization
• Judge appoints two physicians to examine the individual
Procedures in Civil Commitment
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• Formal hearing takes place– Examiners and others testify about the
person’s mental state and potential danger
– The judge determines whether the person must enter treatment
– Commitment is usually for a defined length of time
• Six months to one year
• Indefinite subject to periodic review/assessment
Procedures in Civil Commitment (cont’d.)
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• Due process procedures important– Ensure commitment does not violate a
person’s civil rights
• Individual accused of a crime– Considered innocent until proven guilty in a
court of law
• Criminal justice system will not incarcerate people because they might harm someone– Civil commitment is based on possible future
harm
Protection against Involuntary Commitment
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• Addington v. Texas (1979)– Clear and convincing evidence that person is
mentally ill and potentially dangerous
• Dixon v. Weinberger (1975)– Least restrictive environment
• Right to least restrictive alternative to freedom that is appropriate to a person’s condition
Rights of Mental Patients
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• Those involuntarily committed have a right to receive therapy to improve their emotional state
• Rouse v. Cameron (1966)– Right to treatment is constitutional right
– Failure to provide treatment not justified by lack of resources
• O’Connor v. Donaldson (1975)– State cannot constitutionally confine
nondangerous person who can care for self
Right to Treatment
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• Many forms of treatment may have long-term side effects– Forced treatment may nullify potentially
beneficial effects
• Rennie v. Klein / Rogers v. Okin – People have a constitutional right to refuse
treatment (e.g., psychotropic medications) and to be given due process
• Least intrusive forms of treatment– Psychotherapy considered least intrusive
Right to Refuse Treatment
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• Trend toward deinstitutionalization– Influences access to treatment
– Shifts care from large institutions to local agencies
– Mental hospital population has dropped 75 percent since the 1960s and 1970s
– Concept of mainstreaming
– State hospitals inadequately staffed and underfunded
Deinstitutionalization
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• States have relinquished responsibility
• Mentally ill are not receiving treatment and often live on the streets– Thousands are now homeless
• Estimate: 30 to 70 percent of the homeless have a mental disorder
• Communities lack preparation and resources to care for mentally ill
Criticisms of Deinstitutionalization
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• Right to die movement– Medical advances have increasingly
lengthened the dying process
• Physician faces civil or criminal lawsuit in many states– Particularly if patient lacks advance directive
• Suicide considered both a sin and an illegal act– Question: do people have the right to commit
suicide?
Moral, Ethical, and Legal Issues Surrounding Suicide
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• Confidentiality – Ethical standard that protects clients from
disclosure of information without their consent
• Privileged communication – Therapist’s legal obligation to protect a client’s
privacy and to prevent the disclosure of confidential communications without a client’s permission
Ethical Guidelines for Mental Health Professionals
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• Civil or criminal commitment or competency to stand trial
• Client introduces mental condition as a claim or defense in a civil action
• Clients younger than 16 or dependent elderly person– When therapist believes individual has been
the victim of a crime
• Client presents danger to self or others
Exemptions from Privileged Communication
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• Based on Tarasoff ruling – Obligates mental health professionals to
break confidentiality when clients pose clear and imminent danger to other person
– Must warn intended victim
• Criticisms– Therapist placed in role of a double agent
– The act of warning could escalate events
The Duty to Warn
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Duty to Warn
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• Prevents colleges and universities from disclosing personal information about students, even to their parents– Colleges treat students as adults, so telling
parents would infantilize students
– Students may be less inclined to share information if they knew rights were not confidential
• Undergraduates have more mental health needs than ever before
Family Educational Rights and Privacy Act
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• Ethical code– Sexual intimacies with clients prohibited for a
minimum of two years after termination of therapy
• Importance of separating and creating boundaries between professional and personal lives– Therapists need to be objective
Sexual Relationships with Clients
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• Prevailing concepts of mental health and mental disorders are culture-bound– Therapy approaches based on highly
individualistic values of middle- to upper-class European Americans
• ASA guidelines adopted in 2003– Emphasize importance of culturally-sensitive
work with racial and ethnic minorities
– Recognize cultural factors in diagnosis
Cultural Competence and the Mental Health Profession
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• Becoming aware of and deal with biases, stereotypes, and assumptions
• Becoming aware of the values and worldviews of culturally different clients
• Developing appropriate intervention strategies– Considering social, cultural, historical, and
environmental factors that influence clients from diverse cultures
Cultural Competence (cont’d.)
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• What are the criteria used to judge insanity, and what is the difference between being insane and being incompetent to stand trial?
• Under what conditions can a person be involuntarily committed to a mental institution?
• What rights do mental patients have with respect to treatment and care?
Review
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• Are there situations in which suicide should be an option?
• What legal and ethical issues guide treatment practices?
Review (cont’d.)