16.6 SUMMING UP

Ethical Issues

• Each type of mental health professional works under his or her discipline’s ethical code; all disciplines include in their ethical code the principle of confidentiality, which applies to information that patients share with mental health professionals.
• Because of HIPAA, the limits of confidentiality have been redefined. Now limited information about a patient may be shared with the patient’s other health providers in order to facilitate treatment.
• Although laws protect confidentiality, confidentiality may be violated against a patient’s wishes when a clinician has reasonable cause to: (1) suspect abuse of children, the elderly, or the disabled, or (2) believe that a patient is likely to do significant harm to himself or herself or a specified other person.
• The legal counterpart of the ethical principle of confidentiality is privileged communication—the protection of confidential information from disclosure during legal proceedings.

Criminal Actions and Insanity

• Various tests have been used to determine whether a defendant is insane. The first was the M’Naghten test in 1843, followed by the irresistible impulse test. After almost 70 years came the Durham test. Many states presently use the American Legal Institute (ALI) test, which requires either impaired knowledge that the behavior was wrong (cognition) or impaired capacity to resist the impulse to act illegally (volition). The Insanity Defense Reform Acts of the 1980s did away with the volition element to determine insanity in federal courts.
• To assess insanity, a jury may rely on testimony about the defendant’s mental state during the time leading up to the crime, the defendant’s history of mental illness prior to the crime, and testimony or reports from expert witnesses about the defendant’s mental state or mental illness.
• Mental health clinicians may assess a defendant’s sanity through interviews with the person, psychological tests and questionnaires, and interviews with family members and friends. However, such measures may be affected by the defendant’s experiences in jail, medications he or she may be taking, the decision to plead not guilty by reason of insanity, reactions to the crime, coaching from the defendant’s lawyer or other inmates, and the way the defendant responds to various assessment methods. But none of this information necessarily indicates the defendant’s mental state at the time of the crime.
• Research indicates that acquittal on the basis of the insanity defense is extremely rare, particularly when the decision is made by a jury rather than a judge.
• Competency to stand trial addresses the defendant’s mental state before the trial and whether the defendant is competent to participate in his or her own defense; someone who is not competent to stand trial would also be deemed not competent to plead guilty and not competent to waive the right to an attorney.

Dangerousness: Legal Consequences

• Dangerousness has four components related to the potential harm the person may inflict: severity, imminence, frequency, and probability.
• Mental health clinicians have a legal duty to warn and to protect specified potential victims who are judged to be in imminent danger of being harmed by a patient. A clinician may warn the intended victim, notify law enforcement agencies, and/or take other reasonable steps, such as having the patient confined to a psychiatric facility. Clinicians may violate confidentiality to fulfill these duties.
• Criminal commitment may occur before a defendant’s trial to evaluate his or her competence for upcoming legal proceedings or to obtain treatment for the defendant so that he or she can become competent to take part in legal proceedings. When criminal commitment occurs after a trial, it is because the defendant was acquitted for the reason of insanity.
• Civil commitments occur before a crime has been committed, in order to prevent harm to the patient or others deemed to be at significant risk of harm. Patients may be committed to inpatient or outpatient facilities.

Legal Issues Related to Treatment

• The Supreme Court has ruled that people who are civilly committed should be given the least restrictive alternative treatment available. Civil commitments may not be used solely to confine people against their will indefinitely.
• Patients usually have a right to refuse treatment, such as medication. However, patients who have physically threatened other people may be forced to take medication or receive other treatment, as long as there has been a fair and adequate hearing of the issues involved.
• Defendants may be sent to drug courts if their drug use was the underlying motivation for the crime; such courts have been successful in decreasing rates of relapse and reoffending.
• Mental health courts can mandate treatment for mentally ill defendants; such programs have been found to decrease violence and subsequent offences.