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Ethical and Legal Issues CHAPTER 16 Ethical and Legal Issues CHAPTER Ethical and Legal Issues 16 CHAPTER OUTLINE CHAPTER HEADINGS INSTRUCTION IDEAS AND TEXTBOOK CORRELATIONS ETHICAL ISSUES An Ethical Principle: The Learning Objectives: 16.1, 16.2, 16.3, 16.4 Role of Confidentiality Learning Concepts: ambiguities regarding confidentiality; limits of confidentiality: HIPAA in action; legal restrictions on confidentiality; privileged communication Learning Activity 16.1: APA Code of Ethics Lecture Enhancement 16.1: The Internet and Confidentiality Textbook Tool: Table 16.1 Informed Consent to Learning Objective: 16.5 Participate in Research Learning Concepts: ability to understand and reason, educational on Mental Illness: Can videos to increase awareness Patients Truly Be Informed? CRIMINAL ACTIONS AND INSANITY While Committing the Learning Objective: 16.6 Crime: Sane or Insane? Learning Concepts: criminally responsible, insanity, the M’Naghten test, the irresistible impulse test, the Durham test, the American Legal Institute test, insanity defense reform acts Learning Activity 16.2: Comparison of the Insanity Tests Textbook Tools: Table 16.2; Case 16.1 The Insanity Defense: Learning Objectives: 16.7, 16.8, 16.9 Current Issues Learning Concepts: prevalence, wrong versus illegal, abstract versus specific understanding, assessing insanity for the insanity defense, states’ rights: doing away with the insanity defense, with the insanity defense do people really “get away with murder”? CHAPTER 16 Ethical and Legal Issues After Committing Learning Objective: 16.10 the Crime: Learning Concepts: competency to: understand proceedings, facts in Competent to Stand the case, and legal options, consult with the lawyer reasonably Trial? rationally, assist the lawyer to build the defense; medication use for competency Textbook Tool: Case 16.2 DANGEROUSNESS: Learning Objective: 16.11 LEGAL CONSEQUENCES Learning Concepts: dangerousness as a legal term; four components: severity, imminence, frequency, probability Evaluating Learning Objectives: 16.12, 16.13 Dangerousness Learning Concepts: either/or nature of dangerousness, confidentiality, risk factors; involuntary treatment: imminent risk of committing a violent crime or deemed an imminent risk when about to be released from incarceration or hospital treatment Textbook Tool: Table 16.3 Actual Dangerousness Learning Objective: 16.14 Learning Concepts: prevalence of dangerousness in the mentally ill; risk factors: psychosis, delusions that lead to anger, serious mental illness combined with substance abuse Textbook Tool: Figure 16.1 Confidentiality and the Learning Objective: 16.15 Dangerous Patient: Learning Concepts: Tarasoff rule, duty to protect, duty to warn Duty to Warn and Duty to Protect Maintaining Safety: Learning Objectives: 16.16, 16.17, 16.18, 16.19 Confining the Learning Concepts: criminal commitment, civil commitment, Dangerously Mentally Ill mandated outpatient commitment, reality of treating chronic Patient mental illness, Kendra’s law, sexual predator laws Lecture Enhancement 16.2: Mental Health Courts Textbook Tool: Case 16.3 Worth Video Anthology for Abnormal Psychology: 130. Outpatient Commitment: Forcing Persons Into Mental Health Treatment 131. Jailing the Mentally Ill 132. When Treatment Leads to Execution: Mental Health and the Law LEGAL ISSUES RELATED TO TREATMENT Right to Treatment Learning Objective: 16.20 Learning Concepts: least restrictive treatment setting, Lake v. Cameron; minimal criteria for therapy, Rouse v. Cameron; discharge criteria, O’Connor v. Donaldson Right to Refuse Learning Objective: 16.20 Treatment Learning Concepts: a civilly committed patient has the right to CHAPTER 16 Ethical and Legal Issues refuse; exceptions Competence to Refuse Learning Objective: 16.20 Treatment Learning Concepts: difference from competency to stand trial; assessment Learning Activity 16.3: Debate on the Right to Refuse Treatment Mental Health and Drug Learning Objective: 16.21 Courts THE WHEELS OF JUSTICE: FOLLOW-UP ON ANDREW GOLDSTEIN LEARNING OBJECTIVES After completing this chapter, students should be able to: 16.1 Describe the role of and ambiguities regarding confidentiality in mental health ethics. 16.2 Articulate the changes in confidentiality that resulted from the Health Insurance Portability and Accountability Act (HIPAA) of 2002. 16.3 Detail the legal restrictions on confidentiality. 16.4 Expound on the definition of privileged communication. 16.5 Identify the general rule that defines informed consent to participate in research on mental illness. 16.6 Describe each of the five tests that have been used in the United States to determine whether a person is insane. 16.7 Identify the two unresolved issues regarding the federal requirements for the insanity defense. 16.8 Describe the factors to consider when assessing an insanity defense. 16.9 Identify two alternative options to pleading the insanity defense used in some states. 16.10 Detail the requirements for competency to stand trial. 16.11 Define dangerousness according to its four components regarding potential harm. 16.12 Articulate the research findings regarding the risk factors that could best identify which patients discharged from psychiatric facilities would subsequently act violently. 16.13 Identify under which two types of situations an incarcerated or hospitalized individual who is considered dangerous can continue to be incarcerated or hospitalized. 16.14 Identify the two circumstances related to mental illness that increase dangerousness. 16.15 Detail the options for mental health professionals who decide that a patient is about to harm a specific person. 16.16 Describe criminal commitment and civil commitment. 16.17 Describe the history and findings associated with both inpatient and outpatient commitment. 16.18 Expound on some of the problems encountered when trying to obtain appropriate treatment for people with chronic or severe mental illness. 16.19 Detail the history of sexual predator laws. CHAPTER 16 Ethical and Legal Issues 16.20 Describe each of the various court rulings regarding the rights of the mentally ill, including right to treatment, right to refuse treatment, and competence to refuse treatment. 16.21 Define the roles of drug courts and mental health courts. KEY TERMS Confidentiality: The ethical requirement not to disclose information about a patient (even whether someone is a patient) to others unless legally compelled to do so. Privileged communication: Confidential information that is protected from being disclosed during legal proceedings. Criminally responsible: The determination that a defendant’s crime was the product of both an action or attempted action (the alleged criminal behavior) and his or her intention to perform that action. M’Naghten test (or rule): The legal test in which a person is considered insane if, because of a “defect of reason, from disease of the mind,” he or she did not know what he or she was doing (at the time of committing the act) and did not know that it was wrong. Irresistible impulse test: The legal test in which a person is considered insane if he or she knew that his or her criminal behavior was wrong but nonetheless performed it because of an irresistible impulse. Durham test: The legal test in which a person is considered insane if an irresistible impulse to perform criminal behavior was due to a mental defect or disorder present at the time of the crime. American Legal Institute test (ALI test): The legal test in which a defendant is considered insane if he or she either lacks a substantial capacity to appreciate that his or her behavior was wrong or has a diminished ability to make his or her behavior conform to the law. Competency to stand trial: The determination that a defendant’s mental state during the time leading up to the trial that enables him or her to participate in his or her own defense. Dangerousness: The legal term that refers to someone’s potential to harm self or others. Tarasoff rule: A ruling by the Supreme Court of California (and later other courts) that psychologists have a duty to protect potential victims who are in imminent danger. Criminal commitment: The involuntary commitment to a mental health facility of a person charged with a crime. Civil commitment: The involuntary commitment to a mental health facility of a person deemed to be at significant risk of harming himself or herself or a specific other person. CHAPTER GUIDE Chapter Introduction • Andrew Goldstein, who had a 10-year history of mental illness, pushed Kendra Webdale in front of a subway train in New York City in 1998, causing her immediate death. CHAPTER 16 Ethical and Legal Issues Although Goldstein was thought to have murdered Webdale, the case turned out not to be so simple. • This chapter examines legal and ethical issues pertaining to mental health professionals and patients and also thoroughly examines criminal actions and their consequences when the actions are by those who are mentally ill. I. ETHICAL ISSUES What are the clinician’s ethical obligations when a patient threatens the safety of others? A. An Ethical Principle: The Role of Confidentiality Each mental health profession has its own code of ethics, with commonalities among all the codes. [See Table 16.1] • The most important commonality is the requirement to maintain confidentiality—not to disclose to others information about a patient at any time unless legally mandated to do so. • Mental health records must remain confidential. • Patients must be informed as to the limits of confidentiality. LEARNING
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