Chapter 15facultyweb.anderson.edu/~glg/3120/lectures/lecture_15.pdf · concern in choosing a...

Chapter 15

Legal & Ethical

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Ethical Practice

1. What would be your first concern in choosing a therapist

for your self or a family member?

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CLINICIAN ROLES & RESPONSIBILITIES

• Therapist competence - Professional standards

• Informed Consent – Next Slide• Confidentiality- Duty to safeguard client

secrets• Privileged Communication - Legal privilege

of nondisclosure unless client waiver

2. How would you measure therapist competence?

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Informed Consent• Has participated in setting the goals of treatment• Process of therapy• Client’s rights• Therapist’s responsibilities• Treatment risks• Techniques used• Financial issues • Understands and agrees to treatment plan, • Knows clinician’s credentials, • Limits of confidentiality

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CLINICIAN ROLES & RESPONSIBILITIES

• Mandated reporting of child abuse and neglect is exception to rules of confidentiality and privilege

• Relationships with clients - Must keep therapeutic boundaries. Most ethical codes forbid romantic and sexual involvement

• Duty to Warn— victim & now family

3. Pro & Con of Mandated Reporting?

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The Business Of Psychotherapy

Payment Issues• Paid by client or, more often, third party.• Health maintenance organizations and

managed care health systems arose to keep insurance affordable.

• Conflicts arise between managed care and client treatment needs.

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Special Roles For Clinicians

• Expert witness• Evaluation in child protection cases• Guardian ad litem: one to decide for another• Evaluations of people with cognitive

disorders• All have inherent ethical dilemmas -

someone other than person you are evaluating is paying you for your services

4. How much money per session does it seem reasonable for a

person to pay for therapy?

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Forensic Psychology

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What are the two perspectives from which psychological

distress in its relationship to the law can be examined?

• Individual• Society

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Explain the differences in goals between the two perspectives?

• Individual want to maintain their freedom and get treatment

• Society want to be protected from harm or possible observer discomfort

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Commitment of Clients• Emergency legal procedure• Involuntary placement in inpatient

facility• Doctrine of parens patriae (protect

those unable to protect themselves)

• Balance rights of client with client’s best interests

• Right to least restrictive treatment• Right to refuse medication

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Involuntary commitment• The process whereby the state

hospitalizes people for their own good and even over their vigorous protest

• The state act as a parent to whose who have “lost their senses”.

• Doing for them what they would do for themselves if they had their wits about them

• The state also uses its police power to protect society from foreseen danger by mental patients

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Civil commitment

• Same as involuntary commitment

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Indiana “72 Hour Hold”• Judge [William] Whitman told The Tribune later that the 72-hour

provision does not require a hearing to be held within that time, but merely a determination to be made by a physician about the patient's state of mind and whether hospitalization should be continued. The 72 hours does not include weekends, holidays or other times when the courts are not in session.

• If a person thinks he is in Madison Center without just cause, Keckley [David Keckley, Taylor's attorney] said, he can have access to a lawyer and can file a writ of habeus corpus immediately. The judge can go to the hospital the same day to hold a hearing, Keckley said. The safeguard in the system, Keckley said, is that the judge is available and Keckley is always available as a public defender.

• http://www.ai.org/legislative/ic/code/title12/ar26/ch5.html• http://indianalawblog.com/archives/2004/06/indiana_law_fin.html

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Why is involuntary commitment in some ways worse than

imprisonment?

• Loss of due process• Indefinite sentence

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Criminal commitment

• Coerced hospitalization of people who have acted harmfully

• But are not legally responsible because they lack a “guilty mind”

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Commitment

Commitment

Voluntary Civil (Involuntary) Criminal

Dangerousness Insanity Defense CompetencyRight to Refuse Right to Treatment

5. Other than dangerousness, what other criteria justify civil

commitment?

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Common Commitment Criteria

• Mental disorder• Dangerous to self or others• Grave disability

Dangerousness

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Serious problems that arise from the notion of dangerousness.

• Should people be incarcerated before a crime is committed

• How accurately can dangerousness be predicted

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Predicting Dangerousness• Extremely high rates of false

positives• Accurate only for males

experiencing psychotic symptoms

• Often inaccurate for:– Females– Those with prior violent

behavior

Right to Treatment & to Refuse Treatment

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“Right to Treatment”.

• Confined until well without treatment is a life sentence

• Mandated treatment without funding releasing patient to even worse settings

• Hospitals are meant for treatment, not punishment. • To deprive any citizen of his/her liberty upon the

altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the fundamentals of due process.

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Patients preference for hospital or release

• They prefer release

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Thank you test

• To determine when involuntary commitment is appropriate

• Will the individual once recovered be grateful for the hospitalization

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INSANITY DEFENSE

Contrary to popular belief, this is a legal term, not a psychological term.

The argument, presented by a lawyer acting on behalf of the client, that, because of the existence of a mental disorder, the client should not be held legally responsible for criminal actions.

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Descriptive responsibility

• Whether or not the person’s body actually committed the act

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Ascriptive responsibility

• Whether or not society will hold the person responsible for the acts of his or her body

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Insanity Defense

In question is the individual’s state of mind at the time of the criminal action.– Unable to appreciate wrongfulness of their conduct and

to control their actions due to a severe mental disturbance.

– Generally require DSM-IV-TR diagnosis of psychotic disorder, severe mood disorder, dissociative disorder.

– Personality disorder will not be sufficient.• Full psychological test battery, interview, report to the

Court

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• M’Naghten Rule

• Durham Rule

• American Law Institute

• Insanity Defense Reform Act

INSANITY DEFENSE:HISTORY

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Insanity Defense Reform Act criteria for determining insanity.

• Defendant must prove that at the time of the crime he was insane

• Because of mental disease or defect was unable to appreciate the nature and quality or the wrongfulness of his acts.

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How is psychiatric institutionalization like

imprisonment?• Loss of vote• Loss of freedom to call, mail, eat food of

choice• Loss of due process

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Psychiatric institutionalization different than jail?

• For persons benefit• For treatment

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Basic ways psychiatric diagnoses can be abused.

• By Government to remove dissidents• By society to stigmatize individuals.

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On what basis and for how long can one be involuntarily

committed? • 24 hours to 28 days without trial or judge • Extended indefinitely by physician• Based only on allegations of a spouse or

friend

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Due Process Rights• Notified of a trial in a timely manner• Trial by jury• Present at one’s own trial• Legal counsel and timely appointment of counsel• Exclude unreliable evidence like hearsay• Challenge witnesses• Not to self incriminate• Counsel at all interviews including psychiatric

interviews• Know with considerable precision which laws one

has violated and of what you are accused

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3 Standards of Proof

• 51% preponderance of evidence• 75% clear and convincing• 90% beyond a reasonable doubt

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COMPETENCY TO STAND TRIAL

Whether a defendant is aware of and able to participate in criminal proceedings against him or her.

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Competency to Stand Trial

• Present mental condition - Must understand proceedings and be able to assist attorney in their defense

• Standard is very low• Evaluation with interview, assessment

instruments• Report to the Court• 100 to 1 Competency to Insanity

Humanitarian Theory of Punishment

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A brief statement of the HTP

• To punish a personbecause he deserves it, and as much as he deserves,

• is mere revenge, and therefore, barbarous and immoral.

• It is maintained that the only legitimate motives for punishing are the desire to deter others by example

• or to mend the criminal.

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The assumption that leads to the idea that all crime is more or less

pathological.• Complete determinism.

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The way in which the cures and the punishments will be similar.

• They will both be compulsory.

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Who makes the decision as to the punishment when it is seen as

deserved. • Society, the jury, the common man

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Who will make the decision as to what will be done to the criminal

when the concept of desert is removed

• The penologist, the psychotherapist

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How the relevant question changes when the concept of

desert is removed.

• Before: Is this punishment just? • After: Does this treatment work or deter?

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The first result of the HTP.

• The criminal is given an indefinite sentence.

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What concerns would Lewis have about involuntary commitment?

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C.S. Lewis' claims regarding the humanitarian theory of

punishment. • The "humanity" it claims is

a dangerous illusion and disguises the possibility of cruelty and injustice without end.

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Lewis's basic complaint with the HTP

• From the moment that one breaks the law one would be deprived of his human rights.

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Why the HTP removes human rights

• Because it removes the concept of desert.

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What is meant by "desert."

• The quality or fact of meriting or having earned.

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Why the concept of desert is so important.

• Because it is the only link between punishment and justice.

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What happens to the individual when we remove the concept of

desert.

• We no longer have a person but an object, a "case"

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What is lost in the loss of the concept of desert?

• The right to criticize the justice of the treatment by the common human

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If it would be a good thing for the common human to have a say in how criminals should be treated

(punished)?

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How this argument is parallel to the issue with those who are

confined in psychiatric facilities.

• There is the implicit belief and the societal endorsement that everything is done for the good of the patient.

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What is the danger of how the HTP might be used in the hands

of wicked persons. • Any state of mind

the rulers choose to call disease could be compulsorily cured.

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What danger for someone who has responsibility for the behavior of another person?

• Be careful that the things he does for another person are really for that person's good.

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Thought questions for Section C

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Places diagnosis is used outside of medicine and

psychology.

• How is it the same?• How is it different?

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What is the basic weakness that separates psychiatric diagnoses

from diagnosis of a brain tumor?• What would be necessary

to free psychiatric diagnosis from this problem?

• How would psychology be different if this problem were solved?

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How does knowing the assumptions of science affect you?

• Your confidence in science?• Your confidence in other sources of

information?• Other ways?

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What is helpful about the scientific method for studying

abnormal psychology?• What would be other ways of studying

abnormal psychology?• What would be their advantages?

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How do you react to C.S. Lewis' ideas on punishment?

• where do you agree?• where do you disagree?• what problem is he trying to

solve?• why does he want to solve the

problem?