Tag: Mental Health & Law

An Overview of Mental Health Among Female Offenders in the US

Published on by Andrew MarshallLeave a comment

Introduction

People in prison are more likely than the general United States (US) population to have received a mental disorder diagnosis, and women in prison have higher rates of mental illness and mental health treatment than do men in prison. Furthermore, women in prisons are three times more likely than the general population to report poor physical and mental health. Women are the fastest growing demographic of the US prison population. As of 2019, there are about 222,500 women incarcerated in state and federal prisons in the US. Women comprise roughly 8% of all inmates in the US.

In 2011, 11% of male inmates had an overnight hospital stay due to psychiatric problems, while the proportion of women who did was roughly twice that of men. In 2010, 73% of incarcerated women and 55% of incarcerated men self-reported mental health problems. This statistic accounts for the reporting of at least one of two criteria, as a self-reported mental or emotional problem, or a reported overnight hospital stay. The most common mental health problems among incarcerated women are substance abuse/dependence, post-traumatic stress disorder, and depression. Other common disorders include schizophrenia, bipolar disorder, and dysthymia.

Refer to An Overview of Mental Illness in US Jails and Prisons.

Before Crime

Early Experiences of Victimisation

Criminality among females is intimately associated with experiences of trauma and victimisation occurring early in life. The majority of incarcerated females have experienced some kind of victimisation, defined as experiences of physical, sexual, or emotional trauma. Among female offenders 78% of have reported prior sexual or physical abuse, compared to only 30% of male offenders. Furthermore, “research consistently links histories of violence with negative mental health outcomes, such as depression, substance abuse, and intimate partner violence among incarcerated women at higher rates than those in the general female population”. Early experiences of victimisation predispose women to be more likely to suffer from certain psychiatric disorders, particularly post-traumatic stress disorder (PTSD), depression, and dysthymia. A study conducted in 2017, found that 60% of participating female inmates had been diagnosed with a mental illness.

Following PTSD and substance abuse/dependence, depression is the third most common psychiatric disorder among incarcerated women. Depression and substance abuse, too, are closely linked with experiences of victimisation or PTSD, and more so for women than for men. In fact, according to the National Comorbidity Survey, women are twice as likely as men to experience co-occurring PTSD and depression. The prevalence of depression among incarcerated females links to trends within the general population as well. A study found that of the 54% of incarcerated women diagnosed with lifetime PTSD, 63% reported experiencing three or more traumatic events. While women are more likely than men to suffer internalised problems, such as anxiety and depression, men are more likely to be treated for externalised problems such as delinquency, aggression, and substance abuse. This difference coincides with a gendered discrepancy in the experiences of mentally ill offenders once they enter the criminal justice system.

Victimisation and Criminal Offending

In both males and females, sexual abuse, physical abuse, and neglect increase the likelihood of arrest for a juvenile by 59% and as an adult by 28%. Although sociologists do not point to a single explanation for the association between victimisation, trauma, and incarceration, researchers have found that trauma frequently cause women to abuse drugs and alcohol as a coping mechanism. Sociologists also point out that early victimisation increases the likelihood of women’s continued or exacerbated involvement in harmful settings. According to one ethnography of female offenders in Boston, “In fact, running away from home—often to escape abuse in households dominated by violent men—is the charge in the first arrest for nearly a quarter of girls in the juvenile justice system… On the streets, women are vulnerable to harassment, exploitation, and drug use, all of which drag them into the correctional circuit”. In addition to symptoms of trauma, other mental health problems such as major depression, schizophrenia, and mania are linked with patterns of violent offending and homelessness prior to arrest.

Substance Abuse

Substance abuse and dependence are the most common mental health problems among incarcerated females, and drug use is the most common reason for women’s incarceration. At the end of 2018, 26% of female state prisoners were serving time for drug related offenses. This percentage is double than that of male state prisoners who are serving time for drug related charges. Seventy percent of incarcerated females suffer from drug abuse or dependence, and incarcerated females are nine times more likely than the general population to experience substance abuse and dependence. Social researchers have linked substance abuse to experiences of trauma and victimisation.

Sociologists have conducted extensive research in favour of a self-medication hypothesis in relation to women’s drug use and abuse, positing that women use drugs as a way to cope with experiences of sexual or physical trauma. Past research suggests that consequences of childhood sexual abuse increase a woman’s risk for self-medicating with alcohol and drugs. Incarcerated women with a history of substance abuse are more likely have had prior mental health and criminal justice experiences than incarcerated women with no history of drug abuse.

In The Courts

Within the US justice system, women’s criminal activity is more likely than men’s to be medicalised, in connection with a tendency to perceive female offenders as “mad, rather than bad.” Female offenders are more likely than men to receive psychiatric evaluations, even when they have not self-reported a mental illness. Sociologists have noted that gendered stereotypes among men and women contribute to this discrepancy in mental health evaluations. While criminal behaviour and aggression are more associated with masculinity, traits such as passivity and submission are more associated with feminine roles. Female offenders are more likely to be identified as having engaged in role-incongruent or deviant behaviour that is explained, diagnosed, and treated psychiatrically. Receiving a psychiatric evaluation reduces the chances that a defendant will have charges dropped against her or him, and also increases the likelihood of conviction, incarceration, and lengthier prison sentences. Because women who have engaged in crime are thought to have violated gender norms, some sociologists posit that female offenders may receive harsher sentences than men. However, among men and women in the general population, sociologists have not reached a consensus on the differences in sentencing, treatment, and leniency among males and females in general. For instance, among juveniles, males are more likely to be arrested, petitioned, and adjudicated than females. Among juvenile females who are sentenced, studies vary on whether these women receive lighter or harsher sentences. Some studies find that women are treated more leniently by courts. Other studies show that juvenile women may be sentenced more harshly than their male counterparts.

During Incarceration

Prevalence of Mental Illness

Several studies have found that rates of mental illness in prisons are higher than those in the general population and that rates of mental illness in women’s prisons are higher than those in men’s prisons. In 1999 a report for the Department of Justice estimated16% of the prison population had some form of mental disorder. However, much research in this area “lack[s] specificity regarding important subpopulations, such as female offenders.” That work which has looked at female offenders as an “important subpopulation” has found that they experience mental health problems at greater rates than their male counterparts. According to a report through the Bureau of Justice Statistics, female prisoners are about twice as likely than male prisoners to have a history of mental health problems.

A study through the Mental Health Prevalence Project which used “three major indicators of mental illness: diagnosis of a serious mental illness, history of inpatient psychiatric care, and psychotropic medication use” found that female offenders have “on average, twice the rate of various indicators as males.” The study found (using a weighted sample) that 17.8% of male offenders and 35.1% of female offenders have a mental health problem upon being committed. This study did not treat substance abuse as a mental health disorder.

Other studies report much higher rates of mental illness among prisoners. One Bureau of Justice Statistics survey in 2004 found that 55% of male inmates and 73% of female inmates self-reported a mental health problem. The Sentencing Project, in their 2007 Briefing Sheets, also report that 73.1% of women in prisons have a mental health problem. Female inmates who experience co-occurring disorders are four times more likely than other female inmates to receive severe disciplinary punishment. No significant relationship has been found between severe punishment and a singular mental health disorder or substance use disorder. Female inmates are more likely than male inmates to be diagnosed with depression, substance abuse, developmental disabilities, bipolar disorder, PTSD, and eating disorders.

Mental Health Treatment and Services

For many offenders, incarceration provides a rare opportunity to access mental health services not available to offenders within their communities. Despite the growing prison population in the US and the prevalence of mental health problems “In-prison services have not expanded sufficiently to meet treatment needs. In fact, between 1988 and 2000, prison mental health services declined, and those services that are available are concentrated only in the most secure facilities.” One study found that 41% of female inmates report use of mental health services while incarcerated, while 73% report mental health problems.

According to the Bureau of Justice Statistics “All Federal prisons and most State prisons and jail jurisdictions, as a matter of policy, provide mental health services to inmates, including screening inmates at intake for mental health problems, providing therapy or counseling by trained mental health professionals, and distributing psychotropic medication.” Researchers working with the Mental Health Prevalence Project note that “legal mandates and humanitarian concerns alone require that [mental health] services be provided. In addition, the effective, safe, and orderly management of correctional facilities require that these needs be met.”

While sociologists have recommended trauma-focused treatments for offenders, these services are still lacking. Researchers have also noted that “there is strong empirical support for gender-specific, trauma-focused treatments”. In one study, researchers offered 25 therapeutic group sessions to female inmates with mental health problems. It was found that the sessions were “successful at significantly decreasing post-traumatic stress disorder (PTSD) and substance use disorder (SUD) symptoms, with almost 50% of participants no longer meeting criteria for the disorder and 65% reporting no substance use at the 3-month follow up”. Reasons for the lack of gender-specific treatment in women’s prisons despite their proven use may be the difficulties of setting up such programmes, including navigation of “legal and logistical barriers.”

It has been found that female inmates are medicated at higher rates than their male counterparts. Women are also treated differently than men in prisons in regard to mental illness. Studies suggest “that female inmates’ behaviour is more likely than males’ to be ‘psychiatrized’ by correctional staff”. One study shows that “role incongruence” effects how female and male inmates are treated. According to the study “female inmates who perpetrated acts of violence against others and/or property, or who demonstrated aggressiveness or agitation, were significantly more likely than men exhibiting similar behaviors to be placed in mental health units”. Furthermore, the researchers found that men exhibiting “female psychiatric disorders (e.g., depression)” were more likely to receive mental health care than females exhibiting the same disorders. The study suggests that differential treatment of male and female inmates may be based on the inmates adherence to gender norms, and that a breaking of these norms is likely to be treated psychiatrically. Therapeutic or rehabilitation programmes in prisons also differ for men and women, with male prisons providing more access to programs for anger management, and female prisons providing more access to programmes addressing trauma or loss.

After Prison

In many instances, living in prison obligates individuals to adapt socially and psychologically, making it difficult to reintegrate into daily life outside of prison and to develop healthy relationships. Furthermore, due to the prevalence of chronic diseases within jails, offenders returning to low-income communities may be inadvertently contributing to health inequities in low-income areas. The difficulties facing women upon their release from prison range from “finding housing, getting a job, earning enough money to support themselves, reconnecting with children and family.” Failure to find work and a stable home may lead women back to committing crime and back to prison. The recidivism rates among prisoners is so high that it has been termed the “revolving door phenomenon.” Studies have found that among women released from prison in 1994 “58% were arrested” within three and a half years of release, and “39% were returned to prison”. A 2011 study by Pew Centre of the States find similar recidivism rates. The release and re-entry difficulties that female prisoners face are often exacerbated by mental health challenges.

The high rates of mental health problems among female offenders follows them past prison and into re-entry. A study published in 2010 by the Re-entry Planning for Offenders with Mental Disorders: Policy and Practice found that “of 357 women released from prison in six states, 44% reported they had been diagnosed with bipolar disorder, depression, obsessive compulsive disorder, post traumatic stress disorder, phobia, or schizophrenia.” A majority, 56%, of these women, felt they were currently in need of treatment. However, studies find that mental health and substance abuse treatment is not readily available to women returning to their communities from prison. Furthermore, upon release many women often have trouble keeping up with medication they had access to in prison. These mental health problems may hinder offenders as they try to find a job and housing. Their health problems may be so severe they cannot work, they face the additional job of managing their health problem and mental illness increases the likelihood of engaging in “inappropriate behavior that provokes a law enforcement response.” These challenges may increase recidivism rates. An individual’s chance of recidivism decreases if significant change occurs to their in-prison mental health.

This page is based on the copyrighted Wikipedia article < https://en.wikipedia.org/wiki/Mental_health_among_female_offenders_in_the_United_States >; it is used under the Creative Commons Attribution-ShareAlike 3.0 Unported License (CC-BY-SA). You may redistribute it, verbatim or modified, providing that you comply with the terms of the CC-BY-SA.

Risk Communication & Assessment: Are Meteorologists Superior to Psychologists/Psychiatrists?

Published on by Andrew MarshallLeave a comment

Abstract

Meteorology is often thought of as a field with highly developed techniques for forecasting rare and severe events. Risk assessment of another type of rare and severe event – violence to others – occurs in mental health law. The analogy between these 2 forms of risk assessment is explored in this article. How meteorologists go about assessing the risk of harmful weather is described. Implications from the meteorological analogy are drawn for 1 aspect of violence prediction that is routinely ignored in mental health law: the communication of risk “forecasts.”

Reference

Monahan, J. & Steadman, H.J. (1996) Violent Storms and Violent People: How Meteorology can Inform Risk Communication in Mental Health Law. American Psychologist. 51(9), pp.931-938. https://doi.org/10.1037/0003-066X.51.9.931.

You can read a free copy of the article here.

What is the Paranoia Network?

Published on by Andrew MarshallLeave a comment

Introduction

The Paranoia Network, founded in November 2003, is a self-help user-run organisation in Sheffield, England, for people who have paranoid or delusional beliefs.

Background

In contrast to mainstream psychiatry, that tends to see such beliefs as signs of psychopathology, the Paranoia Network promotes a philosophy of living with unusual and compelling beliefs, without necessarily pathologising them as signs of mental illness. It was partly inspired by the Hearing Voices Network’s approach to auditory hallucinations.

What would otherwise seem to be a relatively minor disagreement over theory is complicated by the fact that people diagnosed as delusional can often be detained under mental health law and treated without their consent. Therefore, many of the criticisms of the diagnosis or definition have important ethical and political implications, which often leads to heated public debate.

This page is based on the copyrighted Wikipedia article < https://en.wikipedia.org/wiki/Paranoia_Network >; it is used under the Creative Commons Attribution-ShareAlike 3.0 Unported License (CC-BY-SA). You may redistribute it, verbatim or modified, providing that you comply with the terms of the CC-BY-SA.

What is Informed Refusal?

Published on by Andrew Marshall3 Comments

Introduction

Informed refusal is where a person has refused a recommended medical treatment based upon an understanding of the facts and implications of not following the treatment. Informed refusal is linked to the informed consent process, as a patient has a right to consent, but also may choose to refuse.

Refer to Informed Consent, Mature Minor Doctrine, and Gillick Competence.

Background

The individual needs to be in possession of the relevant facts as well as of their reasoning faculties, such as not being intellectually disabled or mentally ill and without an impairment of judgement at the time of refusing. Such impairments might include illness, intoxication, drunkenness, using drugs, insufficient sleep, and other health problems. In cases where an individual is considered unable to give informed refusal, another person (guardian) may be authorised to give consent on their behalf. The concept grew out of and is similar to that of informed consent, but much less commonly used and applied. In the United States, it is recognised in certain state laws (in 2006: California, Nevada, Vermont, and Michigan) as well as in various court decisions.

As applied in the medical field, a physician has made an assessment of a patient and finds a specific test, intervention, or treatment is medically necessary. The patient refuses to consent to this recommendation. The physician then needs to explain the risks of not following through with the recommendations to allow the patient to make an informed decision against the recommendation. While in the past documentation of refusal of treatment has not been important, the widespread use of managed care, cost containment processes, as well as increased patient autonomy have created a situation where documented “informed refusal” is viewed as becoming more important. When refusal of treatment may result in significant damage or death, the interaction needs to be documented to protect the care giver in a potential later litigation against the allegation that the recommendation was either not made or not understood. On occasion, a patient will also refuse to sign the “informed refusal” document, in which case a witness would have to sign that the informed process and the refusal took place.

The pregnant patient represents a specific dilemma in the field of informed refusal as her action may result in harm or death to the foetus. Ethicists disagree on how to handle this situation.

What is Marion’s Case (1982)?

Published on by Andrew Marshall1 Comment

Introduction

Secretary of the Department of Health and Community Services v JWB and SMB, commonly known as Marion’s Case, is a leading decision of the High Court of Australia, concerning whether a child has the capacity to make decisions for themselves, and when this is not possible, who may make decisions for them regarding major medical procedures.

It largely adopts the views in Gillick v West Norfolk Area Health Authority, a decision of the House of Lords in England and Wales.

Refer to Mature Minor Doctrine, Informed Consent, and Informed Refusal.

Background

“Marion”, a pseudonym for the 14-year-old girl at the centre of this case, suffered from intellectual disabilities, severe deafness, epilepsy and other disorders. Her parents, a married couple from the Northern Territory sought an order from the Family Court of Australia authorising them to have Marion undergo a hysterectomy and an oophrectomy (removal of ovaries). The practical effect would be sterilisation and preventing Marion from being able to have children and many of the hormonal effects of adulthood.

Under the Family Law Act the primary concern for matters involving children is that the court must act in the child’s best interests. The majority of the High Court made it clear that it was merely deciding a point of law and that the decision about what was in the child’s “best interests” would be left to the Family Court of Australia after the case.

The main legal debate that arose was who has the legal authority to authorise the operation. Three options existed: the parents (as legal guardians of their daughter), Marion or an order of a competent court, such as the Family Court of Australia. The Full Court of the Family Court was asked to decide:

  1. Could the parents, as joint guardians authorise the sterilisation procedure;
  2. If not, does the Family Court have jurisdiction to:
    (a) authorise the carrying out of such a procedure;
    (b) enlarge the powers, rights or duties of the parents to enable them to authorise such a procedure; or
    (c) approve the consent of the Applicants, as to the proposed procedure.

The majority of the Family Court, Strauss and McCall JJ held that the parents, as joint guardians could authorise the sterilisation procedure. Nicholson CJ held that the Family Court had jurisdiction to authorise the procedure.

The department, together with the Attorney-General for Australia, argued that only a court could authorise such a major operation and that the Family Court jurisdiction included any matter relating to the welfare of a child even if it was not a dispute about custody, guardianship or access.

The parents, however, “argued that the decision to sterilise a child is not significantly different from other major decisions that parents and guardians have to make for children and that the involvement of the Family Court is optional and only of a ‘supervisory nature’. Their argument was that, provided such a procedure is in the best interests of the child, parents as guardians can give lawful consent to a sterilisation on behalf of a mentally incompetent child.”

Judgement

The High Court recognised the right of everyone to bodily integrity under national and international law, and made a distinction between therapeutic and non-therapeutic surgical procedures as well as the duty of surrogates to act in the best interests of the incompetent patient.

In the case, the High Court ruled that while parents may consent to medical treatment for their children, the authority does not extend to treatment not in the child’s best interests. Also, the Court held that if medical treatment has sterilisation as its principal objective, parents do not have the authority to consent on behalf of their child.

Obiter Dictum

The statement by Deane J that parents may grant surrogate consent for the non-therapeutic circumcision of male children is obiter dictum and not part of the judgment. Male circumcision was not at issue in the case and no evidence or testimony was offered regarding male circumcision.

What is Mental Health Law?

Published on by Andrew Marshall3 Comments

Introduction

Mental health law includes a wide variety of legal topics and pertain to people with a diagnosis or possible diagnosis of a mental health condition, and to those involved in managing or treating such people. Laws that relate to mental health include:

  • Employment laws, including laws that prohibit employment discrimination on the basis of a mental health condition, require reasonable accommodations in the workplace, and provide mental health-related leave;
  • Insurance laws, including laws governing mental health coverage by medical insurance plans, disability insurance, workers compensation, and Social Security Disability Insurance;
  • Housing laws, including housing discrimination and zoning;
  • Education laws, including laws that prohibit discrimination, and laws that require reasonable accommodations, equal access to programmes and services, and free appropriate public education;
  • Laws that provide a right to treatment;
  • Involuntary commitment and guardianship laws;
  • Laws governing treatment professionals, including licensing laws, confidentiality, informed consent, and medical malpractice;
  • Laws governing admission of expert testimony or other psychiatric evidence in court; and
  • Criminal laws, including laws governing fitness for trial or execution, and the insanity defence.

Mental health law has received relatively little attention in scholarly legal forums. The University of Memphis Cecil C. Humphreys School of Law in 2011 announced the formation of a student-edited law journal entitled “Mental Health Law & Policy Journal.”

United States

Employment

Title I of the Americans with Disabilities Act of 1990 (“ADA”) is a civil rights law that protects individuals with depression, posttraumatic stress disorder (“PTSD”), and other mental health conditions in the workplace. It prohibits employers with 15 or more employees from firing, refusing to hire, or taking other adverse actions against a job applicant or employee based on real or perceived mental health conditions. It also strictly limits the circumstances under which an employer can ask for information about medical conditions, including mental health conditions, and imposes confidentiality requirements on any medical information that the employer does have.

The ADA also requires employers to provide reasonable accommodations to job applicants or employees with mental health conditions under some circumstances. A reasonable accommodation is a special arrangement or piece of equipment that a person needs because of a medical condition to apply for a job, do a job, or enjoy the benefits and privileges of employment. Examples include a flexible schedule, changes in the method of supervision, and permission to work from home. To have the right to a reasonable accommodation, the worker’s mental health condition must meet the ADA’s definition of a “current disability.” Conditions that should easily qualify include major depression, PTSD, bipolar disorder, obsessive-compulsive disorder (“OCD”), and schizophrenia. Other conditions may also qualify, depending on what the symptoms would be if the condition were left untreated, during an active episode (if the condition involves active episodes). The symptoms do not need to be severe or permanent for the condition to be a disability under the ADA.

Under the Family and Medical Leave Act of 1993 (FMLA), certain employees are entitled to up to twelve weeks of job-protected and unpaid leave to recover from a serious illness or to care for a family member with a serious illness, among other reasons. To be eligible, the employer must have had 50 or more employees in 20 or more workweeks in the current or preceding calendar year, or else must be a public agency, elementary school, or secondary school, and the employee must have worked for the employer for at least 12 months, must have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and must work at a location where the employer has at least 50 employees within 75 miles.

United Kingdom

Various pieces of legislation including Mental Health Act 1983 and the Mental Capacity Act 2005 govern mental health law giving mental health professionals the ability to commit individuals, treat them without consent and place restrictions on them while in public through outpatient commitment, according to the rules of this legislation. These decisions can be challenged through the mental health tribunals which contain members of the judiciary, though the initial decisions are made by mental health professionals alone.

Around the World

Civil Commitment

Mental health legislation is largely used in the management of psychiatric disorders, such as dementia or psychosis, and developmental disabilities where a person does not possess the ability to act in a legally competent manner and requires treatment and/or another person to act in his or her best interests. The laws generally cover the requirements and procedures for involuntary commitment and compulsory treatment in a psychiatric hospital or other facility.

In some jurisdictions, court orders are required for compulsory treatment; in others, psychiatrists may treat compulsorily by following set procedures, usually with means of appeal or regular scrutiny to ensure compliance with the law.

Sources of Law

Mental health law includes areas of both civil and criminal common and statutory law.

Common law is based on long-standing English legal principles, as interpreted through case law. Mental health-related legal concepts include mens rea, insanity defences; legal definitions of “sane,” “insane,” and “incompetent;” informed consent; and automatism, amongst many others.

Statutory law usually takes the form of a mental health statute. An example is the Mental Health Act 1983 in England and Wales. These acts codify aspects of the treatment of mental illness and provides rules and procedures to be followed and penalties for breaches.

Not all countries have mental health acts. The World Health Report (2001) lists the following percentages, by region, for countries with and without mental health legislation.

What is the Community Mental Health Act of 1963?

Published on by Andrew Marshall1 Comment

Introduction

The Community Mental Health Act of 1963 (CMHA) (also known as the Community Mental Health Centres Construction Act, Mental Retardation Facilities and Construction Act, Public Law 88-164, or the Mental Retardation and Community Mental Health Centres Construction Act of 1963) was an act to provide federal funding for community mental health centres and research facilities in the United States.

Background

This legislation was passed as part of John F. Kennedy’s New Frontier. It led to considerable deinstitutionalisation.

In 1955, Congress passed the Mental Health Study Act, leading to the establishment of the Joint Commission on Mental Illness and Mental Health. That Commission issued a report in 1961, which would become the basis of the 1963 Act.

The CMHA provided grants to states for the establishment of local mental health centres, under the overview of the National Institute of Mental Health. The NIH also conducted a study involving adequacy in mental health issues. The purpose of the CMHA was to build mental health centres to provide for community-based care, as an alternative to institutionalisation. At the centres, patients could be treated while working and living at home.

Only half of the proposed centres were ever built; none were fully funded, and the act did not provide money to operate them long-term. Some states saw an opportunity to close expensive state hospitals without spending some of the money on community-based care. Deinstitutionalisation accelerated after the adoption of Medicaid in 1965. During the Reagan administration, the remaining funding for the act was converted into a mental-health block grant for states. Since the CMHA was enacted, 90% of beds have been cut at state hospitals.

The CMHA proved to be a mixed success. Many patients, formerly warehoused in institutions, were released into the community. However, not all communities had the facilities or expertise to deal with them. In many cases, patients wound up in adult homes or with their families, or homeless in large cities, but without the mental health care they needed.

What was Addington vs Texas (1979)?

Published on by Andrew MarshallLeave a comment

Introduction

Addington v. Texas, 441 U.S. 418 (1979), was a landmark decision of the US Supreme Court that set the standard for involuntary commitment for treatment by raising the burden of proof required to commit persons for psychiatric treatment from the usual civil burden of proof of “preponderance of the evidence” to “clear and convincing evidence”.

Background

Before Frank Addington was arrested on the misdemeanour charge of “assault threat” against his mother, Addington’s mother filed a petition with the court, in accordance with Texas law, requesting that Addington be indefinitely involuntarily committed to a state psychiatric hospital. Addington had a long history of mental and emotional problems and past psychiatric hospitalisations. The state trial court issued jury instructions that the decision be based on “clear, unequivocal and convincing evidence” that Addington was mentally ill and that hospitalisation was required for his own welfare and the welfare of others. The jury found that Addington was mentally ill and required hospitalisation. Thereupon the trial court ordered his indefinite commitment. He was indefinitely committed to Austin State Hospital.

However, Addington appealed to the Texas Court of Appeals, based on the argument the court should have used the “beyond a reasonable doubt” standard of proof. The appeals court reversed, agreeing with Addington. The Texas Supreme Court then reversed the Court of Appeals’ decision, reinstating the trial court’s orders. It concluded that the standard of proof of the preponderance of the evidence satisfied due process in a civil commitment proceeding.

Addington then appealed to the US Supreme Court on a writ of certiorari (in law, certiorari is a court process to seek judicial review of a lower court of government agency).

Opinion of the Court

The appeal was dismissed and certiorari granted; the lower court’s decision was vacated and remanded. The court said the issue of an individual’s interest in liberty is of such weight and gravity that a higher standard of proof is required than is normal in civil cases brought under state law. Because of the uncertainties of psychiatric diagnosis, the burden of proof does not need to be as high as “beyond a reasonable doubt” in criminal cases, but should be a “clear and convincing” standard of proof as required by the Fourteenth Amendment in such a civil proceeding to commit an individual involuntarily for an indefinite period to a state psychiatric hospital.

Further, the opinion touched on the issue of an involuntary commitment as primarily medical in nature and needing the expertise of mental health experts.

Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.

Subsequent Developments

The court raised the bar for committing someone against their will in a civil commitment proceeding. When the stakes are exceptionally high in civil matters, the burden of proof must be “clear and convincing evidence”. The case raised important issues regarding civil commitment by placing the burden of proof on the petitioner, that is the party seeking the involuntary commitment of a person.

The opinion also suggested that it was not necessarily for the trier of facts to draw the necessary conclusions without the expertise of psychiatrists and psychologists.

The Supreme Court also cited the Addington case in Santosky v. Kramer, which set a clear and convincing evidence standard in termination of parental rights cases.

What is Involuntary Commitment?

Published on by Andrew Marshall10 Comments

Introduction

Involuntary commitment, civil commitment, or involuntary hospitalisation (also known informally as sectioning or being sectioned in some jurisdictions, such as the UK) is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hospital (inpatient) where they can be treated involuntarily. This treatment may involve the administration of psychoactive drugs, including involuntary administration. In many jurisdictions, people diagnosed with mental health disorders can also be forced to undergo treatment while in the community; this is sometimes referred to as outpatient commitment and shares legal processes with commitment.

Refer to Voluntary Commitment.

Criteria for civil commitment are established by laws which vary between nations. Commitment proceedings often follow a period of emergency hospitalisation, during which an individual with acute psychiatric symptoms is confined for a relatively short duration (e.g. 72 hours) in a treatment facility for evaluation and stabilisation by mental health professionals who may then determine whether further civil commitment is appropriate or necessary. Civil commitment procedures may take place in a court or only involve physicians. If commitment does not involve a court there is normally an appeal process that does involve the judiciary in some capacity, though potentially through a specialist court.

Historically, until the mid-1960s in most jurisdictions in the US, all committals to public psychiatric facilities and most committals to private ones were involuntary. Since then, there have been alternating trends towards the abolition or substantial reduction of involuntary commitment, a trend known as “deinstitutionalisation”. In many currents, individuals can voluntarily admit themselves to a mental health hospital and may have more rights than those who are involuntarily committed. This practice is referred to as voluntary commitment.

In the United States, an indefinite form of commitment is applied to people convicted of some sexual offences.

Purpose

For most jurisdictions, involuntary commitment is applied to individuals believed to be experiencing a mental illness that impairs their ability to reason to such an extent that the agents of the law, state, or courts determine that decisions will be made for the individual under a legal framework. In some jurisdictions, this is a proceeding distinct from being found incompetent. Involuntary commitment is used in some degree for each of the following although different jurisdictions have different criteria. Some jurisdictions limit involuntary treatment to individuals who meet statutory criteria for presenting a danger to self or others. Other jurisdictions have broader criteria. The legal process by which commitment takes place varies between jurisdictions. Some jurisdictions have a formal court hearing where testimony and other evidence may also be submitted where subject of the hearing is typically entitled to legal counsel and may challenge a commitment order through habeas corpus. Other jurisdictions have delegated these power to physicians, though may provide an appeal process that involves the judiciary but may also involve physicians. For example in the UK a mental health tribunal consists of a judge, a medical member, and a lay representative.

First Aid

Training is gradually becoming available in mental health first aid to equip community members such as teachers, school administrators, police officers, and medical workers with training in recognising, and authority in managing, situations where involuntary evaluations of behaviour are applicable under law. The extension of first aid training to cover mental health problems and crises is a quite recent development. A mental health first aid training course was developed in Australia in 2001 and has been found to improve assistance provided to persons with an alleged mental illness or mental health crisis. This form of training has now spread to a number of other countries (Canada, Finland, Hong Kong, Ireland, Singapore, Scotland, England, Wales, and the United States). Mental health triage may be used in an emergency room to make a determination about potential risk and apply treatment protocols.

Observation

Observation is sometimes used to determine whether a person warrants involuntary commitment. It is not always clear on a relatively brief examination whether a person should be committed.

Containment of Danger

Refer to Obligatory Dangerousness Criterion.

Austria, Belgium, Germany, Israel, the Netherlands, Northern Ireland, Russia, Taiwan, Ontario (Canada), and the United States have adopted commitment criteria based on the presumed danger of the defendant to self or to others.

People with suicidal thoughts may act on these impulses and harm or kill themselves.

People with psychosis are occasionally driven by their delusions or hallucinations to harm themselves or others. Research has found that those who suffer from schizophrenia are between 3.4 and 7.4 times more likely to engage in violent behaviour than members of the general public. However, because other confounding factors such as childhood adversity and poverty are correlated with both schizophrenia and violence it can be difficult to determine whether this effect is due to schizophrenia or other factors. In an attempt to avoid these confounding factors, researchers have tried comparing the rates of violence amongst people diagnosed with schizophrenia to their siblings in a similar manner to twin studies. In these studies people with schizophrenia are found to be between 1.3 and 1.8 times more likely to engage in violent behaviour.

People with certain types of personality disorders can occasionally present a danger to themselves or others.

This concern has found expression in the standards for involuntary commitment in every US state and in other countries as the danger to self or others standard, sometimes supplemented by the requirement that the danger be imminent. In some jurisdictions, the danger to self or others standard has been broadened in recent years to include need-for-treatment criteria such as “gravely disabled”.

Deinstitutionalisation

Refer to Deinstitutionalisation.

Starting in the 1960s, there has been a worldwide trend toward moving psychiatric patients from hospital settings to less restricting settings in the community, a shift known as deinstitutionalisation. Because the shift was typically not accompanied by a commensurate development of community-based services, critics say that deinstitutionalisation has led to large numbers of people who would once have been inpatients as instead being incarcerated or becoming homeless. In some jurisdictions, laws authorising court-ordered outpatient treatment have been passed in an effort to compel individuals with chronic, untreated severe mental illness to take psychiatric medication while living outside the hospital (e.g. Laura’s Law and Kendra’s Law).

Before the 1960s deinstitutionalisation there were earlier efforts to free psychiatric patients. Philippe Pinel (1745-1826) ordered the removal of chains from patients.

In a study of 269 patients from Vermont State Hospital done by Courtenay M. Harding and associates, about two-thirds of the ex-patients did well after deinstitutionalisation.

Around the World

France

In 1838, France enacted a law to regulate both the admissions into asylums and asylum services across the country. Édouard Séguin developed a systematic approach for training individuals with mental deficiencies, and, in 1839, he opened the first school for the intellectually disabled. His method of treatment was based on the idea that the intellectually disabled did not suffer from disease.

United Kingdom

In the United Kingdom, provision for the care of the mentally ill began in the early 19th century with a large state-led effort. Public mental asylums were established in Britain after the passing of the 1808 County Asylums Act. This empowered magistrates to build rate-supported asylums in every county to house the many ‘pauper lunatics’. Nine counties first applied, and the first public asylum opened in 1812 in Nottinghamshire. Parliamentary Committees were established to investigate abuses at private madhouses like Bethlem Hospital – its officers were eventually dismissed and national attention was focused on the routine use of bars, chains and handcuffs and the filthy conditions the inmates lived in. However, it was not until 1828 that the newly appointed Commissioners in Lunacy were empowered to license and supervise private asylums.

The Lunacy Act 1845 was an important landmark in the treatment of the mentally ill, as it explicitly changed the status of mentally ill people to patients who required treatment. The Act created the Lunacy Commission, headed by Lord Shaftesbury, to focus on lunacy legislation reform. The commission was made up of eleven Metropolitan Commissioners who were required to carry out the provisions of the Act; the compulsory construction of asylums in every county, with regular inspections on behalf of the Home Secretary. All asylums were required to have written regulations and to have a resident qualified physician. A national body for asylum superintendents – the Medico-Psychological Association – was established in 1866 under the Presidency of William A. F. Browne, although the body appeared in an earlier form in 1841.

At the turn of the century, England and France combined had only a few hundred individuals in asylums. By the late 1890s and early 1900s, this number had risen to the hundreds of thousands. However, the idea that mental illness could be ameliorated through institutionalisation was soon disappointed. Psychiatrists were pressured by an ever-increasing patient population. The average number of patients in asylums kept on growing. Asylums were quickly becoming almost indistinguishable from custodial institutions, and the reputation of psychiatry in the medical world had hit an extreme low.

United States

In the United States, the erection of state asylums began with the first law for the creation of one in New York, passed in 1842. The Utica State Hospital was opened approximately in 1850. The creation of this hospital, as of many others, was largely the work of Dorothea Lynde Dix, whose philanthropic efforts extended over many states, and in Europe as far as Constantinople. Many state hospitals in the United States were built in the 1850s and 1860s on the Kirkbride Plan, an architectural style meant to have curative effect.

In the United States and most other developed societies, severe restrictions have been placed on the circumstances under which a person may be committed or treated against their will as such actions have been ruled by the United States Supreme Court and other national legislative bodies as a violation of civil rights and/or human rights (e.g. O’Connor v. Donaldson). Thus a person is rarely committed against their will and it is illegal for a person to be committed for an indefinite period of time.

United Nations

United Nations General Assembly Resolution 46/119, “Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care“, is a non-binding resolution advocating certain broadly drawn procedures for the carrying out of involuntary commitment. These principles have been used in many countries where local laws have been revised or new ones implemented. The UN runs programmes in some countries to assist in this process.

Criticism

The dangers of institutions were chronicled and criticized by reformers almost since their foundation. Charles Dickens was an outspoken and high-profile early critic, and several of his novels, in particular Oliver Twist and Hard Times demonstrate his insight into the damage that institutions can do to human beings.

Enoch Powell, when Minister for Health in the early 1960s, was a later opponent who was appalled by what he witnessed on his visits to the asylums, and his famous “water tower” speech in 1961 called for the closure of all NHS asylums and their replacement by wards in general hospitals:

“There they stand, isolated, majestic, imperious, brooded over by the gigantic water-tower and chimney combined, rising unmistakable and daunting out of the countryside – the asylums which our forefathers built with such immense solidity to express the notions of their day. Do not for a moment underestimate their powers of resistance to our assault. Let me describe some of the defenses which we have to storm.”

Scandal after scandal followed, with many high-profile public inquiries. These involved the exposure of abuses such as unscientific surgical techniques such as lobotomy and the widespread neglect and abuse of vulnerable patients in the US and Europe. The growing anti-psychiatry movement in the 1960s and 1970s led in Italy to the first successful legislative challenge to the authority of the mental institutions, culminating in their closure.

During the 1970s and 1990s the hospital population started to fall rapidly, mainly because of the deaths of long-term inmates. Significant efforts were made to re-house large numbers of former residents in a variety of suitable or otherwise alternative accommodation. The first 1,000+ bed hospital to close was Darenth Park Hospital in Kent, swiftly followed by many more across the UK. The haste of these closures, driven by the Conservative governments led by Margaret Thatcher and John Major, led to considerable criticism in the press, as some individuals slipped through the net into homelessness or were discharged to poor quality private sector mini-institutions.

Wrongful Involuntary Commitment

Mental health professionals have, on occasion, wrongfully deemed individuals to have symptoms of a mental disorder, and thereby commit the individual for treatment in a psychiatric hospital. Claims of wrongful commitment are a common theme in the anti-psychiatry movement.

In 1860, the case of Elizabeth Packard, who was wrongfully committed that year and filed a lawsuit and won thereafter, highlighted the issue of wrongful involuntary commitment. In 1887, investigative journalist Nellie Bly went undercover at an asylum in New York City to expose the terrible conditions that mental patients at the time had to deal with. She published her findings and experiences as articles in New York World, and later made the articles into one book called Ten Days in a Mad-House.

In the first half of the twentieth century there were a few high-profile cases of wrongful commitment based on racism or punishment for political dissenters. In the former Soviet Union, psychiatric hospitals were used as prisons to isolate political prisoners from the rest of society. British playwright Tom Stoppard wrote Every Good Boy Deserves Favour about the relationship between a patient and his doctor in one of these hospitals. Stoppard was inspired by a meeting with a Russian exile. In 1927, after the execution of Sacco and Vanzetti in the United States, demonstrator Aurora D’Angelo was sent to a mental health facility for psychiatric evaluation after she participated in a rally in support of the anarchists. Throughout the 1940s and 1950s in Canada, 20,000 Canadian children, called the Duplessis orphans, were wrongfully certified as being mentally ill and as a result were wrongfully committed to psychiatric institutions where they were forced to take psychiatric medication that they did not need, and were abused. They were named after Maurice Duplessis, the premier of Quebec at the time, who deliberately committed these children to in order to misappropriate additional subsidies from the federal government. Decades later in the 1990s, several of the orphans sued Quebec and the Catholic Church for the abuse and wrongdoing. In 1958, black pastor and activist Clennon Washington King Jr. tried enrolling at the University of Mississippi, which at the time was white, for summer classes; the local police secretly arrested and involuntarily committed him to a mental hospital for 12 days.

Patients are able to sue if they believe that they have been wrongfully committed. In one instance, Junius Wilson, an African American man, was committed to Cherry Hospital in Goldsboro, North Carolina in 1925 for an alleged crime without a trial or conviction. He was castrated. He continued to be held at Cherry Hospital for the next 67 years of his life. It turned out he was deaf rather than mentally ill.

In many American states sex offenders who have completed a period of incarceration can be civilly committed to a mental institution based on a finding of dangerousness due to a mental disorder. Although the United States Supreme Court determined that this practice does not constitute double jeopardy, organisations such as the American Psychiatric Association (APA) strongly oppose the practice. The Task Force on Sexually Dangerous Offenders, a component of APA’s Council on Psychiatry and Law, reported that “in the opinion of the task force, sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and the clinical conditions for compulsory treatment. Moreover, by bending civil commitment to serve essentially non-medical purposes, statutes threaten to undermine the legitimacy of the medical model of commitment.”

What is O’Connor vs. Donaldson (1975)?

Published on by Andrew Marshall1 Comment

Introduction

O’Connor v. Donaldson, 422 U.S. 563 (1975), was a landmark decision of the US Supreme Court in mental health law ruling that a state cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by themselves or with the help of willing and responsible family members or friends.

Since the trial court jury found, upon ample evidence, that petitioner did so confine respondent, the Supreme Court upheld the trial court’s conclusion that petitioner had violated respondent’s right to liberty.

Refer to Involuntary Commitment.

Overview

Kenneth Donaldson (confined patient) had been held for 15 years in Florida State Hospital at Chattahoochee, due to needs of “care, maintenance, and treatment.” He filed a lawsuit against the hospital and staff members claiming they had robbed him of his constitutional rights, by confining him against his will. Donaldson won his case (including monetary damages) in United States District Court, which was affirmed by the United States Court of Appeals for the Fifth Circuit. In 1975, the United States Supreme Court agreed that Donaldson had been improperly confined but vacated the award of damages. On remand, the Fifth Circuit ordered that a new trial on damages be held.

A finding of “mental illness” alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the “mentally ill” can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.

May the State confine the mentally ill merely to ensure them a living standard superior to that they enjoy in the private community? That the State has a proper interest in providing care and assistance to the unfortunate goes without saying. But the mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty. In short, a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.

Kenneth Donaldson

The origins of Donaldson’s institutionalisation began in 1943, at age 34, when he suffered a traumatic episode. He was hospitalized and received treatment, before resuming life with his family.

In 1956 Donaldson travelled to Florida to visit his elderly parents. While there, Donaldson reported that he believed one of his neighbours in Philadelphia might be poisoning his food. His father, worried that his son suffered from paranoid delusions, petitioned the court for a sanity hearing. Donaldson was evaluated, diagnosed with “paranoid schizophrenia,” and civilly committed to the Florida State mental health system. At his commitment trial, Donaldson did not have legal counsel present to represent his case. Once he entered the Florida hospital, Donaldson was placed with dangerous criminals, even though he had never been proved to be dangerous to himself or others. His ward was understaffed, with only one doctor (who happened to be an obstetrician) for over 1,000 male patients. There were no psychiatrists or counsellors, and the only nurse on site worked in the infirmary.

He spent 15 years as a patient; he did not receive any treatment, actively refusing it, and attempting to secure his release. Throughout his stay he denied he was ever mentally ill, and refused to be put into a halfway house.

Donaldson later wrote a book about his experience as a mental patient titled Insanity Inside Out.