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Mental Health Law & Policy Journal MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 3 SPRING 2014 NUMBER 2 EDITORIAL BOARD CAROLINE SAPP Editor-in-Chief SETH SEGRAVES Managing Editor JENNIFER MAYHAM KAYLA TOWE Publication Editor MACKENZIE HOGAN Business Editor Executive Editor ANTHONY ADEWUMI KEZIA MILLS AMANDA GARLAND Articles Editor Articles Editor Articles Editor JULIUS BESSER Online Editor SENIOR ASSOCIATES WHITNEY MANNING MEGAN WARDEN KALEIGH ROSE THACKER ABIGAIL HALL LESLYE LANE ASHLEY GENO CASSANDRA BOLDING JAY COX ASSOCIATES ARIEL ANTHONY STILES ASHBY JULIUS BESSER DEMI DALRYMPLE JOHN HEFLIN ASHLEIGH KISS CHASE MILLER GRANT MONROE CHRISTOPHER MOORE JORDAN PRENTISS BRAD REASONOVER JUSTIN RUDD ROSS SMITH JUSTIN STEELE JUSTIN STIDHAM ERICA TAMARIZ WILLIAM TIPPENS KYLE TURNER JESSICA WARGO BRITTANY WILLIAMS NATALIE WORLOW FACULTY ADVISORS LARS GUSTAFSSON, J.D., LL.M. CHRISTINA ZAWISZA, M.A., J.D. DEAN PETER LETSOU, J.D. MENTAL HEALTH LAW & POLICY JOURNAL BOARD OF ADVISORS JENNIFER BARD, J.D., M.S. Texas Tech University DONALD BERSOFF, J.D., PH.D. Drexel University ANNETTE CHRISTY, PH.D. University of South Florida SUSAN DAICOFF, J.D., LL.M., M.S. Arizona Summit Law School DAVID DEMATTEO, J.D., PH.D. Drexel University TREVOR HADLEY, PH.D. University of Pennsylvania THOMAS HAFEMEISTER, J.D., PH.D. University of Virginia JAMES JONES, J.D. University of Louisville MICHAEL PERLIN, J.D. New York Law School ELYN SAKS, J.D., PH.D., M.LITT. University of Southern California CHRISTOPHER SLOBOGIN, J.D., LL.M. Vanderbilt University STACEY TOVINO, J.D., PH.D. University of Nevada, Las Vegas CHRISTINA ZAWISZA, J.D., M.A. University of Memphis MENTAL HEALTH LAW & POLICY JOURNAL (Print: ISSN: 2166-2576; Online ISSN: 2166-2584) is published by students of The University of Memphis, Cecil C. Humphreys School of Law. Address: The University of Memphis, Cecil C. Humphreys School of Law, ATTN: Mental Health Law & Policy Journal, 1 North Front Street, Memphis, Tennessee 38103. Editorial Office: (901) 678-3410. Website: http://www.memphis.edu/law/currentstudents/mentalhealthjournal/index.php Email Address: [email protected] GOAL: The Mental Health Law & Policy Journal is dedicated to the mission of exploring, educating, and expanding scholarly discourse within the broad spectrum of mental health law and policy. Our goal is to provide a forum for scholarly debate and discussion on mental health legal issues and their intersection with mental health policy. CONTENT: The opinions expressed herein are those of the authors and do not necessarily reflect the views of the Mental Health Law & Policy Journal or The University of Memphis, Cecil C. Humphreys School of Law. All authors are requested and expected to disclose any economic or professional interest or affiliations that may have influenced positions taken or advocated in their articles, notes, comments, or other materials submitted. COPYRIGHT: Copyright 2014 © the Mental Health Law & Policy Journal. Please address all requests for permission to reprint an article, or any portion thereof, to the Business Editor at the above address. Except as otherwise expressly provided, permission is granted for reprints of articles to be made and used by nonprofit educational institutions, provided that the author and the source are identified, proper notice of copyright is affixed to each copy, and the Mental Health Law & Policy Journal is notified in writing of the use. SUBMISSIONS: The Mental Health Law & Policy Journal welcomes submission of any original manuscripts on an innovative and timely aspect of mental health law or policy, broadly defined. All correspondences regarding manuscripts should be addressed to the Executive Editor at the above address or at [email protected]. Citations should conform to THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (19th ed. 2010). In certain limited circumstances, articles written in other citation formats may be considered for publication. SUBSCRIPTIONS AND SINGLE ISSUES: The subscription rate is $30.00 per annum. Single issues are available for $15.00. To subscribe to the Mental Health Law & Policy Journal, please subscribe by either check payment or online. To subscribe by mail, please enclose and submit a check to the above address and include your name, address, phone number, and email address. To subscribe online, please visit our link: http://www.memphis.edu/law/currentstudents/mentalhealthjournal/subscriptions.php. All subscript- ions are renewed automatically unless timely notice of cancellation is given to the Business Editor. Please direct all correspondence regarding subscriptions to the Business Editor at the above address or email. POSTMASTER: Please send address changes to The University of Memphis, Cecil C. Humphreys School of Law, ATTN: Mental Health Law & Policy Journal, 1 North Front Street, Memphis, Tennessee 38103. CITE AS: 3 MENTAL HEALTH L. & POL’Y J. __ (2014). MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 3 SPRING 2014 NUMBER 2 Copyright © 2014 Mental Health Law & Policy Journal CONTENTS ARTICLES MENTAL ILLNESS AND DANGER TO SELF Cynthia V. Ward 253 FIREARM LAWS REDUX–LEGISLATIVE PROPOSALS FOR DISARMING THE MENTALLY ILL POST-HELLER AND NEWTOWN Shaundra K. Lewis 320 PSYCHOLOGICAL INJURY AND LAW I: CAUSALITY, MALINGERING, AND PTSD Gerald Young Eric Y. Drogin 373 PSYCHOLOGICAL INJURY AND LAW II: IMPLICATIONS FOR MENTAL HEALTH POLICY AND ETHICS Gerald Young 418 ESSAYS SHIFTING THE LENS: A PRIMER FOR INCORPORATING SOCIAL WORK THEORY AND PRACTICE TO IMPROVE OUTCOMES FOR CLIENTS WITH MENTAL HEALTH ISSUES AND THE LAW STUDENTS WHO REPRESENT THEM Susan McGraugh Carrie Hagan Lauren Choate 471 A CRITIQUE OF THE UGANDA MENTAL HEALTH TREATMENT ACT, 1964 Chrispas Nyombi Alexander Kibandama Ronald Kaddu 505 NOTES FROM CHAOS TO COPING: AN ARGUMENT FOR INCLUDING THE FAMILY IN INVOLUNTARY COMMITMENT Tori Edgar 527 FURIOSUS SOLO FURORE PUNITUR: SHOULD MENTALLY ILL CAPITAL OFFENDERS BE CATEGORICALLY EXEMPT FROM THE DEATH PENALTY? Emily E. Randolph 578 Mental Illness and Danger to Self * BY CYNTHIA V. WARD I. RIGHTS V. TREATMENT: A CONFLICT BETWEEN LAW AND PSYCHOLOGY ........................................................................ 258 II. LAW, PSYCHOLOGY, AND INVOLUNTARY COMMITMENT: SOME HISTORICAL BACKGROUND .................................................. 264 A. Anti-Psychiatry Meets the Due Process Revolution 266 B. Lessard and the Standard of Dangerousness ........... 268 C. Revolt Against Process—the Pro-Treatment Side Rises Again ................................................................ 275 III. REDEFINING “DANGER TO SELF” .......................................... 280 A. An Abolitionist Premise ........................................... 283 B. Mental Illness As Grounds for Involuntary Commitment .............................................................. 290 1. The Problem of Definition ................................ 290 2. In Search of a Legally Intelligible Standard ..... 295 C. Comparing Insanity .................................................. 305 1. The Battle Over Insanity, Or Why Psychiatry “Gifted” Insanity to the Law ............ 307 2. Toward a Purely Legal Standard for Involuntary Commitment ................................... 312 IV. CONCLUSION .................................................................. 316 * Professor of Law, William & Mary Law School. 253 254 Mental Health Law & Policy Journal Vol. 3 The old way involves accepting a set of assumptions that are without factual basis . Foremost on the list is the assumption that commitment for mental illness is a medical problem, not a legal problem. Therefore, since psychiatrists are the experts, their conclusions can be accepted without question. This fallacious assumption must be dispelled. Judge P. Charles Jones1 Michael is a single man in his forties. Sometimes Michael drinks too much alcohol and his alcohol consumption has landed him in a hospital detox unit twice before. During his third stay in detox Michael’s family petitions the local district court to force him into a 30-day residential treatment program that takes place on the grounds of a local prison. Under order by the court, police bring Michael to the courthouse and place him in a holding cell while he awaits a hearing on his family’s petition. At the hearing Michael is represented by an attorney. After four days in detox Michael is completely sober, and no one contends that he is unable to think clearly; that he has committed or is suspected of having committed a crime; or that he poses any sort of danger to other people. Michael tells the court that he opposes the commitment petition; that he does not want to be hospitalized; and that the hospital has provided him with the names and phone numbers of a substance-abuse counselor and a local contact from Alcoholics Anonymous if he wants help in controlling his alcohol consumption. Michael asks the court to release him so that he can go home. The judge calls the court psychologist to the stand and asks whether, under the terms of the state’s involuntary commitment statute, Michael is an “alcoholic” whose use of alcohol is likely to cause “serious harm.” She answers in the affirmative, whereupon the judge orders Michael to be committed for 30 days against his will. The police place Michael in handcuffs and take him away. Next case. 1. Thomas K. Zander, Civil Commitment in Wisconsin: The Impact of Lessard v. Schmidt, 1976 WIS. L. REV. 503, 503 (1976) (quoting Dane County, Wisconsin Judge Jones). 2014 Mental Illness and Danger to Self 255 This is not merely a hypothetical. In a
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