738 CHAPTER 16
In 1997, the Supreme Court upheld the constitutionality of state laws regarding
sexual predators (Kansas v. Hendricks, 1997); these laws are based on the concept
ofparens patriae, under which the government, as “parent,” has the power to pro-
tect the public from threats, as well as the duty to care for those who cannot take
care of themselves (Perlin, 2000c). These laws were intended to prevent sex offend-
ers from committing similar offences, in some cases by ensuring that offenders do
not reenter society while there is a signifi cant risk that they will reoffend. At the end
of a prison term, if a sexual predator was deemed likely to reoffend andwas suffer-
ing from a mental abnormality or personality disorder, that person could be com-
mitted to a psychiatric hospital indefi nitely (Winick, 2003).
However, some people viewed such laws as too restrictive, and in 2002, the Su-
preme Court ruled that in order to commit a sexual offender indefi nitely after a jail
or prison sentence has been served, it must be demonstrated that the person has dif-
fi culty controlling the behavior (Kansas v. Crane, 2002; the Supreme Court did not
say how to demonstrate this, other than pointing to the individual’s past history). In
prison, treatment is voluntary, whereas with commitment it is mandatory.Key Concepts and Facts About Dangerousness
- Dangerousness has four components related to the potential
harm the person may inflict: severity, imminence, frequency,
and probability. - Risk factors for dangerousness include a patient’s prior arrests
and violent acts, experience of child abuse, diagnosis of antiso-
cial personality disorder or substance abuse, and the criminal
and substance abuse history of the patient’s father. A combina-
tion of serious 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 clinician may warn the
intended victim, notify law enforcement agencies, and/or take
other reasonable steps, such as have the patient confi ned to a
psychiatric facility. Clinicians may violate confi dentiality to fulfi ll
these duties. - Criminal commitment may occur before a defendant’s trial to
evaluate his or her competence for upcoming legal proceed-
ings 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 defen-
dant 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
signifi cant risk of harm. Patients may be committed to inpatient
or outpatient facilities. Unfortunately, civil commitments do not
guarantee appropriate treatment. - State sexual predator laws are designed to keep indefinitely
committed to a psychiatric hospital those sex offenders who are
considered to be likely to re-offend. The Supreme Court has up-
held such state laws, provided that the state can show that the
person has diffi culty controlling the behavior.
Making a Determination
- Reread Case 16.3 about Mr. Smith, and determine whether or
not his behavior seems to call for civil commitment and create a
duty to warn. Specifi cally, how did you arrive at your decision?
If you would like more information to determine whether he
should be civilly committed or whether the therapist has a duty
to warn, what information—specifi cally—would you want, and
in what ways would the information infl uence your decision?
Legal Issues Related to Treatment
In the 1960s and 1970s, the courts decided several landmark cases regarding the
rights of the mentally ill. These cases addressed the right to treatment and the right
to refuse treatment.Right to Treatment
In 1966 (Lake v. Cameron), the Supreme Court ruled that people who are forced
to receive treatment through civil commitment should be given the least restric-
tive alternative treatment available. That is, they should have the type of treatment
that infringes the least on their individual liberties. If an individual doesn’t need the
24-hour monitoring and care of an inpatient unit, that person should be treated