Ethical and Legal Issues 743
night, he was yelling and kicking over trash
cans on Main Street, and broke several store
windows. His rant went on for 25 minutes,
until the police arrived. Jon initially resisted
arrest and then cooperated. It seemed to the
police that Jon was behaving as if he were
having a manic episode, and, in fact, he had
a history of bipolar disorder. How might men-
tal health clinicians and the legal system go
about determining whether Jon was “insane”
at the time of the crime? What information
would you want to know in order to determine
whether he was insane? What if, rather than a
history of bipolar disorder, Jon had a history of
alcohol abuse and dependence and was drunk
the night of the crime. Would that change your
opinions? Why or why not?Summary of
Dangerousness
Dangerousness has four components related
to the potential harm the person may infl ict:
severity, imminence, frequency, and probabil-
ity. Risk factors for dangerousness include a
patient’s prior arrests and violent acts, expe-
rience of child abuse, diagnosis of antisocial
personality disorder or substance abuse, and
the criminal and substance abuse history
of the patient’s father. A combination of seri-
ous mental illness and substance abuse leads
to the highest risk of violence.
Mental health clinicians have a legal duty
to warn and to protect specified potential
victims who are judged to be in imminent
danger of being harmed by a patient. The cli-
nician may warn the intended victim, notify
law enforcement agencies, and/or take other
reasonable steps, such as have the patient
confined to a psychiatric facility. Clinicians
may violate confidentiality to fulfill these
duties.
Criminal commitment may occur before a
defendant’s trial to evaluate his or her com-
petence for upcoming legal proceedings or to
obtain treatment for the defendant so that he
or she can become competent to take part in
legal proceedings. When criminal commitment
occurs after a trial, it is because the defendant
was acquitted for the reason of insanity.
Civil commitments occur before a crime
has been committed, in order to prevent harm
to the patient or others deemed to be at sig-
nificant risk of harm. Patients may be com-
mitted to inpatient or outpatient facilities.Unfortunately, civil commitments do not guar-
antee appropriate treatment.
State sexual predator laws are designed
to keep indefi nitely committed to a psychiat-
ric hospital those sex offenders who are likely
to re-offend. The Supreme Court has upheld
such state laws, provided that the state can
show that the person has diffi culty controlling
the behavior.Thinking like a clinician
Tyrone was diagnosed with schizoaffective
disorder when he was 25; his mother, ill with
diabetes herself, couldn’t supervise and take
care of him to the extent that he needed. Cut-
backs in mental health services in his commu-
nity meant that he couldn’t receive adequate
services outside of a hospital (“We don’t have
any available beds in residential care,” and
“We don’t have any available places in the
day treatment center—we’re full”). By age 30,
he was living on the streets, in jail for petty
crimes such as stealing food from a grocery
store, and had been treated for brief periods
in a psychiatric facility. Based on what you
have read, do you think Tyrone is dangerous—
why or why not? Suppose, during psychotic
episodes, he darts across busy streets—
causing car accidents as drivers quickly brake
to avoid hitting him. Would he be dangerous
then—why or why not? What would be the
advantages and disadvantages to him, and to
society, of committing him to inpatient treat-
ment? To outpatient treatment?Summary of Legal Issues
Related to Treatment
The Supreme Court has ruled that people who
are civilly committed should be given the least
restrictive alternative treatment available—
not simply confinement—while recognizing
that treatment might not necessarily be suc-
cessful. In addition, civil commitments may
not be used solely to confi ne people against
their will indefi nitely.
Patients usually have a right to refuse
treatment, such as medication. However, pa-
tients who have physically threatened other
people may be forced to take medication or
receive other treatment, as long as there has
been a fair and adequate hearing of the is-
sues involved. In addition, the right to refuse
treatment may be overridden in certain cir-
cumstances, such as when a patient does nothave sufficient capacity to decide rationally
about particular treatments.
Defendants may be sent to drug courts
if their drug use was the underlying motiva-
tion for the crime; in drug court programs,
defendants are offered treatment for their
substance abuse or dependence, along with
random drug testing and educational and job
training opportunities. Drug courts have been
successful in decreasing rates of relapse and
reoffending. Mental health courts can man-
date treatment for mentally ill defendants;
such programs have been found to decrease
violence and repeat offending.Thinking like a clinician
Ella is in the throes of a psychotic episode
and is in the hospital. At times, she feels bugs
crawling under her skin, and so she viciously
scratches herself until she bleeds. At other
times, she thinks she has superpowers and
can fl y—if there were an open window, she’d
jump out of it. Her psychiatrist has prescribed
an antipsychotic medication, but she won’t
take it: “I don’t like the way it makes me feel.”
Based on what you have read, do you think
Ella has the right to refuse treatment? Why or
why not?Key Terms
Confi dentiality (p. 719)
Privileged communication (p. 720)
Criminally responsible (p. 722)
M’Naghten test (or rule) (p. 722)
Irresistible impulse test (p. 723)
Durham test (p. 723)
American Legal Institute test (ALI test)
(p. 723)
Competency to stand trial (p. 727)
Dangerousness (p. 729)
Tarasoff rule (p. 732)
Criminal commitment (p. 732)
Civil commitment (p. 733)More Study Aids
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chapter, go to:
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