DOCSLIB.ORG

Involuntary Commitment: What Is the Process?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Involuntary Commitment: What Is the Process? Involuntary Commitment: What is the Process? 2020 Edition LawPracticeCLE Unlimited All Courses. All Formats. All Year. ABOUT US LawPracticeCLE is a national continuing legal education company designed to provide education on current, trending issues in the legal world to judges, attorneys, paralegals, and other interested business professionals. New to the playing eld, LawPracticeCLE is a major contender with its oerings of Live Webinars, On-Demand Videos, and In-per- son Seminars. LawPracticeCLE believes in quality education, exceptional customer service, long-lasting relationships, and networking beyond the classroom. We cater to the needs of three divisions within the legal realm: pre-law and law students, paralegals and other support sta, and attorneys. WHY WORK WITH US? At LawPracticeCLE, we partner with experienced attorneys and legal professionals from all over the country to bring hot topics and current content that are relevant in legal practice. We are always looking to welcome dynamic and accomplished lawyers to share their knowledge! As a LawPracticeCLE speaker, you receive a variety of benets. In addition to CLE teaching credit attorneys earn for presenting, our presenters also receive complimentary tuition on LawPracticeCLE’s entire library of webinars and self-study courses. LawPracticeCLE also aords expert professors unparalleled exposure on a national stage in addition to being featured in our Speakers catalog with your name, headshot, biography, and link back to your personal website. Many of our courses accrue thousands of views, giving our speakers the chance to network with attorneys across the country. We also oer a host of ways for our team of speakers to promote their programs, including highlight clips, emails, and much more! If you are interested in teaching for LawPracticeCLE, we want to hear from you! Please email our Directior of Operations at [email protected] with your information. Be advised when speaking for LawPracticeCLE, we require you to provide the bellow items related to your course: 1. A Course Description 2. 3-4 Learning Objectives or Key Topics 3. A Detailed Agenda 4. A Comprehensive PowerPoint Presentation CONTACT US 11161 E State Road 70 #110-213 941-584-9833 www.lawpracticecle.com Lakewood Ranch, FL 34202 LAWPRACTICECLE UNLIMITED LawPracticeCLE Unlimited is an elite program allowing attorneys and legal professionals unlimited access to all Law- PracticeCLE live and on-demand courses for an entire year. LawPracticeCLE provides twenty new continuing legal education courses each month that will not only appeal to your liking, but it will also meet your State Bar requirement. Top attorneys and judges from all over the country partner with us to provide a wide variety of course topics from basic to advanced. Whether you are a paralegal or an experienced attorney, you can expect to grow from the wealth of knowledge our speakers provide. COURSE CATEGORIES A View From The Bench Estate Planning Paralegal Studies Animal Law Ethics, Bias, and Professionalism Personal Injury Law Bankruptcy Law Family Law Practice Management & Trial Prep Business Law Federal Law Real Estate Law Cannabis Law Food and Beverage Law Religious Law Construction Law Gun Law Social Security Law Criminal Law Health Law Specialized Topics Cybersecurity Law Immigration Law Tax Law Education Law Intellectual Property Law Technology Law Employment Law Insurance Law Transportation Law Entertainment Law Nonprot Law Tribal Law More Coming Soon ... ACCREDITATION LawPracticeCLE will seek approval of any CLE program where the registering attorney is primarily licensed and a single alternate state. The application is submitted at the time an attorney registers for a course, therefore approval may not be received at the time of broadcasting. In the event a course is denied credit, a full refund or credit for another Law- PracticeCLE course will be provided. LawPracticeCLE does not seek approval in Illinois or Virginia, however the necessary documentation to seek CLE credit in such states will be provided to the registrant upon request. ADVERTISING WITH LAWPRACTICECLE At LawPracticeCLE, we not only believe in quality education, but providing as many tools as possible to increase success. LawPracticeCLE has several advertising options to meet your needs. For advertising and co-sponsorship information, please contact the Director of Operations, Jennifer L. Hamm, [email protected]. CHECK US OUT ON SOCIAL MEDIA Facebook: www.facebook.com/LawPracticeCLE lnstagram: www.instagram.com/lawpracticecle Linkedln: www.linkedin.com/company/lawpracticecle Twitter: www.twitter.com/LawPracticeCLE INVOLUNTARY COMMITMENT – I’VE HEARD THE TERM, BUT WHAT IS THE PROCESS? Rachel V. Rose, JD, MBA July 2020 Disclaimer THE INFORMATION PRESENTED IS NOT MEANT TO CONSTITUTE LEGAL ADVICE. CONSULT YOUR ATTORNEY FOR ADVICE ON A SPECIFIC SITUATION. Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Presentation highlights ◦ Fundamentally, involuntary commitment can be thought of as a process that can be initiated when a person poses a risk or danger to themselves or to others. ◦ Typically, in the United States in particular, patient autonomy and decision making are cornerstones of our medical system. ◦ One can think of involuntary commitment as an exception to these general rules. The process that follows is complex and the laws vary by state (and different countries). Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Overview ◦ What the definitions of involuntary commitment are in different states and countries; ◦ Who can be involuntarily committed and what criteria must be met; ◦ What is the legal process after the initial commitment; and ◦ How do HIPAA and other advanced directives come into play? Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. WHAT IS INVOLUNTARY COMMITMENT? Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Definition ◦ “Involuntary civil commitment is the admission of individuals against their will into a mental health unit. Generally speaking, there are three reasons why an individual would be subject to involuntary civil commitment under modern statutes: mental illness, developmental disability, and substance addiction. In the case of mental illness, dangerousness to self or others defines the typical commitment standard, with almost all states construing the inability to provide for one's basic needs as dangerousness to self. In terms of process, every state provides for a hearing, the right to counsel, and periodic judicial review, while most states have statutory quality standards for treatment and hospitalization environment.” Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Types of Involuntary Commitment ◦ Three forms of involuntary treatment are authorized by civil commitment laws in 46 states and the District of Columbia. ◦ Two forms are available in Connecticut, Maryland, Massachusetts and Tennessee, where court-ordered outpatient treatment has not yet been adopted. ◦ Three Forms of Involuntary Treatment ◦ Emergency hospitalization for evaluation is a crisis response in which a patient is admitted to a treatment facility for psychiatric evaluation, typically for a short period of fixed time (e.g., 72 hours). "Psychiatric hold" or "pick-up" and other terms may be used to describe the process. ◦ Inpatient civil commitment is a process in which a judge orders hospital treatment for a person who continues to meet the state’s civil commitment criteria after the emergency evaluation period. Inpatient commitment is practiced in all states, but the standards that qualify an individual for it vary from state to state. “Involuntary hospitalization” or another term may be used to describe the practice. ◦ Outpatient civil commitment or “assisted outpatient treatment (AOT)“ is a treatment option in which a judge orders a qualifying person with symptoms of mental illness to adhere to a mental health treatment plan while living in the community. AOT laws have been passed in 46 states, but the standards for its use vary from state to state. “Outpatient commitment,” “involuntary outpatient commitment,” “mandated outpatient treatment” and other terms may be used to describe the practice. Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. TARASOFF & PUBLIC POLICY Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976) Copyright 2018- Rachel V. Rose - Attorney at Law, PLLC. Public Policy ◦ National Alliance on Mental Illness ◦ (9.1.2) With adequate professional consultation, every person with a serious mental illness who has the capacity and competence to do so should be entitled to manage his or her own treatment. When an individual lacks capacity and competence because of his or her serious mental illness, however, the substitute judgment of others--subject to sufficient safeguards with frequent review--may be justified in determining treatment and possible hospitalization. ◦ (9.2.4) Methods for facilitating communications about treatment preferences among individuals with serious mental illnesses, family members, and treatment providers should be adopted and promoted in all states. (9.2.5) Involuntary commitment and court-ordered treatment decisions must be made expeditiously and simultaneously in a single hearing so that individuals can receive treatment in a timely manner. The role of courts should be limited to review to ensure that procedures used in making these determinations comply with individual rights and due-process requirements. The role of the court does not include making medical
Load more

Recommended publications
  • Volk V. Demeerleer Study
    Volk v. DeMeerleer Study Commissioned by: Washington State Legislature House Judiciary Committee December 1, 2017 UW School of Law Center for Law, Science and Global Health Volk v. DeMeerleer Study Research Team Tanya E. Karwaki, JD, LLM, PhD Research Associate, Center for Law, Science and Global Health Jaclyn Greenberg, JD, LLM (candidate) Annemarie Weiss, LLM Gavin Keene, JD (candidate) Faculty Supervisors Patricia C. Kuszler, MD, JD Charles I. Stone Professor of Law Faculty Director, Center for Law, Science, and Global Health Terry J. Price, MSW, JD Executive Director, Center for Law, Science, and Global Health VOLK V. DEMEERLEER STUDY TABLE OF CONTENTS I. Executive Summary ............................................................................................................................... 3 II. Comprehensive Review of the “Duty to Warn” and the “Duty to Protect” ............................................ 5 A. Background: The Tarasoff Case and the Duties to Endangered Third Parties ............................... 5 B. Review of Case Law and Legislative Provisions Across the United States ..................................... 7 1. Terminology with Respect to the “Duty to Protect” and the “Duty to Warn” ......................... 7 2. Summary of the National 50-State (plus District of Columbia) Legislative and Case Survey .. 8 a) Description of the Duty to Third Parties ............................................................................. 8 b) Who Has a Duty to Third Parties in the Context of Mental Health Care .........................
    [Show full text]
  • The Liability of Alaska Mental Health Providers for Mandated Treatment
    111103 WILDE.DOC 12/29/03 2:01 PM THE LIABILITY OF ALASKA MENTAL HEALTH PROVIDERS FOR MANDATED TREATMENT MARSHALL L. WILDE* This Article analyzes the liability of mental health professionals for services rendered to patients who are ordered by a court to undergo mental health treatment. After a brief review of relevant legal authority, this Article examines mandated treatment under the framework of quasi-judicial immunity and continues by discussing the specific duties of mental health professionals to patients under- going mandated treatment. The Article also comments on the unique issues that arise from treatment of patients under federal benefit programs. The Article concludes by arguing that mental health professionals do not enjoy a blanket exemption from mal- practice liability and by suggesting a cautious course of action for such professionals. I. INTRODUCTION Court-ordered treatment programs for substance abuse and mental illness have become a popular tool to achieve the goals of the criminal justice system: to punish, rehabilitate, and deter crimi- nal behavior. In Alaska, mental health providers serve an essential role in determining the disposition of offenders, minors, and in- competents, and have traditionally enjoyed immunity for their du- ties in these roles.1 Outside the protection of immunity, mental Copyright © 2003 by Marshall L. Wilde. This Article is also available on the Internet at http://www.law.duke.edu/journals/20ALRWilde. * Major, Judge Advocate General’s Department, United States Air Force Re- serve, 433rd Airlift Wing, Lackland Air Force Base, Texas; L.L.M., University of Houston Law Center, 2003; J.D., University of Oregon School of Law.
    [Show full text]
  • Mental Health Law & Policy Journal
    MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 1 SUMMER 2012 NUMBER 2 ESSAY THE PARADOX IN MADNESS: VULNERABILITY CONFRONTS THE LAW Marie Failinger, J.D. ARTICLES REFUSING TO RECOGNIZE THE RIGHT TO REFUSE MEDICAL TREATMENT, OR ENSURING PUBLIC SAFETY: AN ANALYSIS OF NEW YORK’S ASSISTED OUTPATIENT TREATMENT LAW Andrew Zacher, J.D., M.S. ONLINE INVESTIGATIONS AND THE AMERICANS WITH DISABILITIES ACT: THE RESURGENCE OF OVERBROAD AND INEFFECTUAL MENTAL HEALTH INQUIRIES IN CHARACTER AND FITNESS EVALUATIONS Bernice M. Bird, M.S. MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 1 WINTER 2012 NUMBER 1 JAMES OLSEN, PH.D. Editor-in-Chief NEELY THOMAS Managing Editor JONATHAN MOSLEY AUSTIN RAINEY Executive Editor Business Editor KAREN HENSON LYNDSEY PARE Articles Editor PETER DAWSON Articles Editor Articles Editor KELLY BUCKHOLDT, M.S. Articles Editor ALLISON RENFRO KERRY KRAUCH Online Editor Administrative Editor SENIOR ASSOCIATE MEMBERS STEVEN BARNES NICOLE BURTON REBECCA HINDS PATRICIA BLOUNT KACY COBLE JOHN-MICHAEL RYALL HANNAH BURCHAM CHARLES FLEET JANA SNYDER ASSOCIATE MEMBERS SARAH ATKINSON BLAKE LESKO COURTNEY PEASANT, M.S. JESSEE BUNDY CHRISTOPHER MARTIN AMANDA RACH NATALIE BURSI RANDAL MARTIN CATHERINE REICH, M.S. JAMES DALE JENNIFER MAYHAM JONATHAN RING TAMARA DAVIS WILLIAM MCCALLUM JESSICA SULLIVAN SHALONDRA GRANDBERRY, M.B.A. JILL MICAI ROBERT SWANN DANIEL LENANGAR RACHEL TILLERY FACULTY ADVISOR LARS GUSTAFSSON, J.D., LL.M. DEAN KEVIN SMITH, J.D., PH.D BOARD OF ADVISORS DONALD BERSOFF, J.D., PH.D. Drexel University ANNETTE CHRISTY, PH.D. University of South Florida DAVID DEMATTEO, J.D., PH.D. Drexel University TREVOR HADLEY, PH.D. University of Pennsylvania THOMAS HAFEMEISTER, J.D., PH.D.
    [Show full text]
  • Psychoanalytic
    Ethics for Clinicians p. 1 Most people print off a copy of the post test and circle the answers as they read through the materials. Then, you can log in, go to "My Account" and under "Courses I Need to Take" click on the blue "Enter Answers" button. After completing the post test, you can print your certificate. If you didn't create an account when you downloaded the course materials, just go back to Ce4Less.com click on Course List, then the ‘Ethics for Mental Health Professionals’ course. Click the green "Try the Free Course" button and you will be able to create your account. Ethics for Mental Health Professionals Introduction Most mental health professionals have a working definition of ethics which is simply: “The rules of conduct of my profession”. Our professional codes of ethics often add a word like “enforceable” to further delineate the importance of professional ethics. The American Psychological Association (APA) code of ethics, for example, defines ethics as “enforceable rules for conduct as psychologists.” Ethical standards are generally written in broad statements and apply in varied roles and contexts. The APA guidelines remind us that ethical standards are not exhaustive and even when conduct is not specifically addressed by an ethical standard it does not mean that the conduct is necessarily either ethical or unethical. While this type of definition is generally clear, what sometimes becomes less clear is the comprehensive role that professional ethics play in our daily lives as psychologists, social workers, counselors, and therapists. When asked what ethical issues they have recently faced, many people in these fields are unable to point to any recent ethical dilemmas.
    [Show full text]
  • Constitutional Law – State Authorization Of
    +(,121/,1( Citation: Catherine L. Falvey, Constitutional Law - State Authorization of Forcible Administration of Depo-Provera Invalid under Colorado Statutory Law, 13 J. HEALTH & BIOMEDICAL L. 171 (2017). Provided by: Moakley Law Library at Suffolk University Law School Content downloaded/printed from HeinOnline Sat Jul 6 20:24:51 2019 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device 171 Journal of Health & Biomedical Law, XIII (2017) 171-183 ©20 17 Journal of Health & Biomedical Law Suffolk University Law School Constitutional Law-State Authorization of Forcible Administration of Depo-Provera Invalid Under Colorado Statutory Law-People ex rel. C.J.R. No. 16CA0915, 2016 Colo. App. LEXIS 1276 (Colo. Ct. App. Sept. 8, 2016). Catherine L. Falvey* Colorado law gives the court responsible for admitting a patient into a state facility the authority to involuntarily administer medication if that patient refuses to accept it.' The Colorado Court of Appeals in People ex rel. C.J.R2 addresses the Denver Probate Court's authorization of chemical castration by means of involuntarily administering Depo-Provera to a male patient exhibiting inappropriate and aggressive sexual behavior. The appeals court held that the probate court could not authorize the state facility to forcibly administer Depo-Provera to the patient, reversing the probate court's initial ruling.' *J.D.
    [Show full text]
  • Legal Update on Duty to Protect
    UW PACC Psychiatry and Addictions Case Conference UW Medicine | Psychiatry and Behavioral Sciences LEGAL UPDATE ON THE DUTY TO PROTECT JENNIFER PIEL, MD, JD CENTER FOR MENTAL HEALTH, POLICY, AND THE LAW DEPARTMENT OF PSYCHIATRY AND BEHAVIORAL SCIENCES UNIVERSITY OF WASHINGTON UW PACC ©2020 University of Washington GENERAL DISCLOSURES The University of Washington School of Medicine also gratefully acknowledges receipt of educational grant support for this activity from the Washington State Legislature through the Safety-Net Hospital Assessment, working to expand access to psychiatric services throughout Washington State. UW PACC ©2020 University of Washington GENERAL DISCLOSURES UW PACC is also supported by Coordinated Care of Washington UW PACC ©2020 University of Washington SPEAKER DISCLOSURES ✓ Nothing to disclose UW PACC ©2020 University of Washington PLANNER DISCLOSURES The following series planners have no relevant conflicts of interest to disclose: Mark Duncan MD Cameron Casey Barb McCann PhD Betsy Payn Rick Ries MD Diana Roll Kari Stephens PhD Cara Towle MSN RN Anna Ratzliff MD PhD has received book royalties from John Wiley & Sons (publishers). UW PACC ©2020 University of Washington OBJECTIVES 1. Understand the legal basis for mental health clinicians’ duty to protect 2. Distinguish legal duties under statutory and common law in Washington 3. Appreciate how to approach the duty from a clinical perspective UW PACC ©2020 University of Washington QUESTION 1 Breach of a patient’s confidentiality may result in all of the following for a physician, except: a. A tort suit b. A criminal conviction c. Sanction by state medical board d. Sanction by the American Medical Association UW PACC ©2020 University of Washington QUESTION 2 The decision in Tarasoff (Cal.
    [Show full text]
  • Legal Issues in Crisis Services
    National Association of State Mental Health Program Directors 66 Canal Center Plaza, Suite 302 Alexandria, Virginia 22314 Assessment #5 Legal Issues in Crisis Services August 2020 Alexandria, Virginia Fifth in a Series of Ten Briefs Addressing—Beyond Beds: Crisis Services This work was developed under Task 2.2 of NASMHPD’s Technical Assistance Coalition contract/task order, HHSS283201200021I/HHS28342003T and funded by the Center for Mental Health Services/Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services through the National Association of State Mental Health Program Directors. 1 LEGAL ISSUES IN CRISIS SERVICES Debra A Pinals, MD Lisa Anacker, MD Author Affiliations Debra A. Pinals, M.D., Clinical Professor of Psychiatry, Director, Program in Psychiatry, Law and Ethics, University of Michigan; Medical Director, Behavioral Health and Forensic Programs, Michigan Department of Health and Human Services; Chair, Medical Director’s Division, National Association of State Mental Health Program Directors. Lisa Anacker, M.D., Adjunct Clinical Assistant Professor, Department of Psychiatry, University of Michigan; Attending in Forensic Psychiatry, Center for Forensic Psychiatry, Saline, MI Project Support This work was supported by the Center for Mental Health Services/Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services through the 2020 Technical Assistance Coalition of the National Association of State Mental Health Program Directors. Disclaimer The views, opinions, content and positions expressed in this paper are those of the author and do not necessarily represent or reflect the official views, opinions, or policies of any governmental, academic, or other institution with whom the author is affiliated; nor does mention of trade names, commercial practices, or organizations imply endorsement by the U.S.
    [Show full text]
  • Mental Health Malpractice in the 1990S
    California Western School of Law CWSL Scholarly Commons Faculty Scholarship 1991 Mental Health Malpractice in the 1990s Steven R. Smith California Western School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/fs Part of the Law and Psychology Commons Recommended Citation Smith, Steven R., "Mental Health Malpractice in the 1990s" (1991). Faculty Scholarship. 118. https://scholarlycommons.law.cwsl.edu/fs/118 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of CWSL Scholarly Commons. For more information, please contact [email protected]. LIABILITY MENTAL HEALTH MALPRACTICE IN THE 1990s Steven R. Smith* Table of Contents I INTRODUCTION .................................. 210 I1 CURRENT LEVEL OF MALPRACTICE CLAIMS .......... 212 II TYPES AND AREAS OF MALPRACTICE CLAIMS ........ 217 A. Legal Basis of Liability .................... 218 B. Areas of Malpractice Liability .............. 221 IV. PROTECTING THIRD PARTIES FROM DANGEROUS PATIENTS ...................................... 242 A. The Duty to Protect (or Warn) ............. 243 B. Tarasoff Statutes .......................... 246 C. Reporting Obligations ...................... 250 V. INSTITUTIONAL LIABIIY ......................... 252 VI. LLABIUTY IN PERSPECTIVE......................... 257 VII MALPRACTICE IN THE 1990S ...................... 259 A. IncreasingLiability ........................ 259 B. Reducing Liability ........................
    [Show full text]
  • The Emerging Professional Liability of Mental Health Providers
    Parity at a Price: The Emerging Professional Liability of Mental Health Providers THOMAS L. HAFEMEISTER* LEAH G. MCLAUGHLIN** JESSICA SMITH*** TABLE OF CONTENTS I. INTRODUCTION .................................................................................................... 30 II. PRIMER ON PROFESSIONAL LIABILITY SUITS TARGETING MENTAL HEALTH CARE PROVIDERS ................................................................................... 35 III. THE IMPACT OF THE DECREASE IN STIGMA ASSOCIATED WITH MENTAL ILLNESS ........................................................................................ 44 IV. THE IMPACT OF IMPROVED TREATMENT OUTCOMES ............................................. 48 V. THE IMPACT OF THE INCREASED USE OF PSYCHOTROPIC MEDICATIONS ................ 54 VI. THE EXPANDING ROLE OF PRIMARY CARE PHYSICIANS AND PRESCRIBING PRIVILEGES .................................................................................... 58 VII. PEDIATRIC PSYCHOTROPIC MEDICATIONS ............................................................ 62 VIII. INFORMED CONSENT AND ADVANCE DIRECTIVES ................................................. 69 IX. TARASOFF-RELATED LIABILITY ............................................................................ 75 X. CONCLUSION ....................................................................................................... 87 * J.D., Ph.D., Associate Professor, School of Law; Associate Professor of Medical Education, School of Medicine; University of Virginia. The Authors would like to thank
    [Show full text]
  • Volk V. Demeerleer: an Unprincipled Divorce of Dangerousness and the Tarasoff Duty to Protect Jaclyn Greenberg
    Washington Law Review Online Volume 92 Article 2 2017 Volk v. DeMeerleer: An Unprincipled Divorce of Dangerousness and the Tarasoff Duty to Protect Jaclyn Greenberg Follow this and additional works at: https://digitalcommons.law.uw.edu/wlro Part of the Medical Jurisprudence Commons Recommended Citation Jaclyn Greenberg, Volk v. DeMeerleer: An Unprincipled Divorce of Dangerousness and the Tarasoff Duty to Protect, 92 wash. l. rev. online 13 (2017). Available at: https://digitalcommons.law.uw.edu/wlro/vol92/iss1/2 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review Online by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. Document1 (Do Not Delete) 6/22/2017 3:23 AM VOLK V. DEMEERLEER: AN UNPRINCIPLED DIVORCE OF DANGEROUSNESS AND THE TARASOFF DUTY TO PROTECT Jaclyn Greenberg* Abstract: Since its inception in Tarasoff v. Regents of the University of the California, the duty to protect third parties imposed on mental health professionals (MHPs) has been the subject of considerable scrutiny. Clinicians and legal scholars alike derided the original duty to protect “anyone foreseeable” as unworkable—undermining the therapeutic relationship and placing MHPs in the impossible position of having to predict their patients’ violent future. Over time, case law and legislation narrowed the duty to something less problematic: a “duty to warn” identifiable victims who face imminent threat of serious harm. However, Volk v. DeMeerleer, reset the duty for Washington MHPs to its original expansiveness, and arguably broadened the basis for imposing the duty.
    [Show full text]
  • Mental Health and the Criminal Justice System in the United States
    2014] “ARE THERE NO PRISONS?” 103 “ARE THERE NO PRISONS?” MENTAL HEALTH AND THE CRIMINAL JUSTICE SYSTEM IN THE UNITED STATES Robert Rigg* I. INTRODUCTION 103 II. A BRIEF HISTORY OF MENTAL HEALTH HOSPITALIZATION IN THE UNITED STATES 107 III. PENROSE’S LAW 110 IV. CURRENT TREATMENT RECOMMENDATIONS 111 A. Symptoms 111 B. Multi-Faceted Treatment Approach 113 V. THE CRIMINAL JUSTICE SYSTEM AND COMPETENCY 115 A. Law Enforcement Interaction with Individuals Having Mental Health Issues 115 B. Duty of Defense Counsel 118 C. Issues Regarding Medication 120 D. Insanity and Diminished Responsibility 121 E. The Criminal Justice System’s Inability to Address Mental Health Issues 123 VI. MENTAL HEALTH COURTS AND DIVERSION PROGRAMS 124 A. Prebooking Diversion 124 B. Mental Health Courts 125 C. Postbooking Diversion 126 VII. CONCLUSION 127 I. INTRODUCTION Charles Dickens penned his famous words “are there no prisons?” in 1843’s A Christmas Carol, as a part of a dialogue between Ebenezer Scrooge and two gentlemen soliciting donations for the poor.1 Two years prior to the release of A Christmas Carol, Dorothea Dix began a crusade to reform the treatment of mentally ill inmates after * Robert Rigg is a professor of law and the director of the Criminal Defense Program at Drake University Law School. I want to thank my research assistants Ashley Sparks, Meredith Lamberti, and Austin Mouw for their assistance with this article. 1 CHARLES DICKENS, A CHRISTMAS CAROL 13 (W. Heinemann ed., Windmill Press 1962) (1843). (“‘At this festive season of the year, Mr. Scrooge,’ said the gentleman, taking up a pen, ‘it is more than usually desirable that we should make some slight provision for the Poor and Destitute, who suffer greatly at the present time.
    [Show full text]
  • Reconciling Positive and Negative Human Rights Obligations in the Use of Neuro Intervention for Sex Offenders
    Trending Toward Precaution at What Cost? Reconciling Positive and Negative Human Rights Obligations in the Use of Neuro Intervention for Sex Offenders Dr. Mark D. Kielsgard and John Khiatini Vinod This article argues that while domestic criminal justice theory must balance positive and negative state obligations under the international human rights framework, the proactive risk-based approach, and incumbent precautionary principle, defeats states negative obligations by intruding on fundamental concepts of human dignity and autonomy which invites greater breeches. It elevates security as a meta-right in the human rights regime displacing liberty, human dignity and non-discrimination. The use of neuro intervention in sex offender cases, even when offered as a choice for reduction of sentences, highlight this trend and represent not only a threat to negative obligations but also a facially invalid protocol for positive rights obligations. Toward these ends, the ECtHR went astray in the Mastromatteo case which gave license to risk penology when it shifted from the “identifiable individual” standard established in Osman to a general public security approach, and in Dvoracek where the precautionary principle was impliedly operative in extending medical necessity to court ordered neuro intervention in sex offense cases. ARTICLE CONTENTS I.INTRODUCTION ................................................................................... 393 II.TRACKING THE ECTHR JURISPRUDENCE ON POSITIVE RIGHTS OBLIGATIONS .......................................................................................
    [Show full text]