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Mental Health Law & Policy Journal MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 3 FALL 2013 NUMBER 1 Copyright © 2013 Mental Health Law & Policy Journal ARTICLES “THE JUDGE, HE CAST HIS ROBE ASIDE”: MENTAL HEALTH COURTS, DIGNITY AND DUE PROCESS Michael L. Perlin PROPHET OR PATIENT: THE IMPACT OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT ON MENTAL HEALTH FACILITIES Alexander Preller THE DSM-5 AND ITS POTENTIAL EFFECTS ON ATKINS V. VIRGINIA Kate Janse van Rensburg WITH THE BEST OF INTENTIONS Chelsea Davis LETTER THE BLACK BOX WARNING: ANTIDEPRESSANT MEDICATION, MONITORING, HIPAA CONFIDENTIALITY, AND SUICIDE Warren Howe & Donna Verest NOTES PROTECTING AGAINST THE DEPRIVATION OF LIFE AND LIBERTY: CURING THE CONSTITUTIONAL DEFECTS OF T.C.A. § 33-3-210 WHILE ENHANCING THE PROTECTION OF PUBLIC SAFETY AGAINST GUN VIOLENCE Mackenzie Hogan PROTECTING THE VICTIMS OF CYBERBULLYING: AN IDEA Caroline E. Sapp ABUSING DRUGS AND DISCRETION: RISK OF RELAPSE INTO DRUG ADDICTION AS A DISABILITY UNDER ERISA-GOVERNED EMPLOYEE BENEFIT PLANS Greg Siepel Mental Health Law & Policy Journal VOLUME 3 FALL 2013 NUMBER 1 EDITORIAL BOARD CAROLINE SAPP Editor-in-Chief SETH SEGRAVES Managing Editor JENNIFER MAYHAM MACKENZIE HOGAN KAYLA TOWE Publication Editor Executive Editor Business Editor ANTHONY ADEWUMI KEZIA MILLS AMANDA GARLAND Articles Editor Articles Editor Articles Editor SENIOR ASSOCIATES WHITNEY MANNING MEGAN WARDEN KALEIGH ROSE THACKER ASHLEY GENO LESLYE LANE ABIGAIL HALL 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. 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. 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 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, TN 38103. Editorial Office: (901) 678-3410 Website: http://www.memphis.edu/law/currentstudents/mentalhealthjournal/index.php Email: [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 2013 © 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 subscriptions 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, TN 38103. Cite as: 3 MENTAL HEALTH L. & POL’Y J. __ (2013). MENTAL HEALTH LAW & POLICY JOURNAL VOLUME 3 FALL 2013 NUMBER 1 Copyright © 2013 Mental Health Law & Policy Journal CONTENTS ARTICLES “THE JUDGE, HE CAST HIS ROBE ASIDE”: MENTAL HEALTH COURTS, DIGNITY AND DUE PROCESS Michael L. Perlin 1 PROPHET OR PATIENT: THE IMPACT OF THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT ON MENTAL HEALTH FACILITIES Alexander Preller 29 THE DSM-5 AND ITS POTENTIAL EFFECTS ON ATKINS V. VIRGINIA Kate Janse van Rensburg 61 WITH THE BEST OF INTENTIONS Chelsea Davis 101 LETTER THE BLACK BOX WARNING: ANTIDEPRESSANT MEDICATION, MONITORING, HIPAA CONFIDENTIALITY, AND SUICIDE Warren Howe & Donna Verest 146 NOTES PROTECTING AGAINST THE DEPRIVATION OF LIFE AND LIBERTY: CURING THE CONSTITUTIONAL DEFECTS OF T.C.A. § 33-3-210 WHILE ENHANCING THE PROTECTION OF PUBLIC SAFETY AGAINST GUN VIOLENCE Mackenzie Hogan 157 PROTECTING THE VICTIMS OF CYBERBULLYING: AN IDEA Caroline E. Sapp 183 ABUSING DRUGS AND DISCRETION: RISK OF RELAPSE INTO DRUG ADDICTION AS A DISABILITY UNDER ERISA-GOVERNED EMPLOYEE BENEFIT PLANS Greg Siepel 220 “The Judge, He Cast His Robe Aside”: Mental Health Courts, Dignity and Due Process MICHAEL L. PERLIN* I. INTRODUCTION ..............................................................................1 II. THERAPEUTIC JURISPRUDENCE.....................................................5 III. THE STRUCTURE OF MENTAL HEALTH COURTS ............................9 A. Two Concerns ...............................................................16 IV. ON DIGNITY..............................................................................20 A. Introduction...................................................................20 V. CONCLUSION..............................................................................27 1 INTRODUCTION * Professor of Law and Director, Online Mental Disability Law Pro- gram, New York Law School; Director, International Mental Disability Law Reform Project, Justice Action Center. Portions of this paper were presented at the biennial congress of the International Academy of Law and Mental Health, July 2009 (NYC), at the annual meeting of the Human Dignity and Humiliation Network, December 2011 (NYC), at the Prato Workshop on Coercive Care: Law and Policy, sponsored by the Monash University Centre for the Advance- ment of Law and Mental Health, May 2012 (Prato, Italy), and the Association of American Law Schools’ annual meeting, January 2013 (New Orleans, LA). The author wishes to thank Alison Lynch for her helpful research and editorial as- sistance. 1. See generally, Michael L. Perlin, “There Are No Trials Inside the Gates of Eden”: Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence, in COERCIVE CARE: RIGHTS, LAW AND POLICY 193 (Bernadette McSherry & Ian Freckelton eds., 2013). 1 2 Mental Health Law & Policy Journal Vol. 3 One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expan- sion of mental health courts, one kind of “problem-solving court.”2 There are now, according to the Council of State Governments’ Justice Center, over 300 such courts in operation in the United States,3 some dealing solely with misdemeanors,4 some solely with non-violent offenders,5 and some with no such restrictions.6 There is a wide range of dispositional alternatives available to judges in these cases,7 and an even wider range of judicial attitudes.8 And the entire concept of “mental health courts” is certainly not without 9 controversy. There is no question, however, that these courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articu- lated focus on dignity,10 as well as their embrace of therapeutic jurisprudence, their
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