Competence, Condemnation and Commitment
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The central institutions of mental health law treat individuals with mental illness differently than others. However, institutions rarely provide a clear conception of mental illness or a clear justification for differential treatment. In this book, the author creates a bold new framework for examining the major intersections between legal institutions and the idea of mental illness. In doing so, he reviews various efforts to reconcile involuntary commitment with the right to refuse treatment or to elevate one power or right over the other. He also advances a compelling case for requiring, as a prerequisite to commitment, a determination of decisional incompetence. Throughout the book, the author uses hypothetical actors with given mental traits, disorders, or diseases and specified behavioral patterns for comparative analysis and differentiation. By using these fictional characters, he both demonstrates and critiques the operations of the various components of mental health law. The volume clarifies the respective roles and responsibilities of legal actors, clinicians, and social scientists and offers guidance concerning the appropriate relationships among these roles and responsibilities.
The Evolution of Mental Health Law
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Chronicles a relatively new field that has developed around the goals of protecting the rights and needs of people with disabilities, defining the proper sphere of individualization in criminal justice, and drawing boundaries between science and morality in decision making. Leading specialists from the field's many domains are brought together, including lawyers, health policy specialists, forensic psychologists, law professors, psychiatrists, and sociologists, who share the theoretical insights and empirical research of significant developments in mental health law and policy in the past 25 yrs. Particularly notable are chapters that examine shifts in attitudes toward the use of human participants in research; whether the statutory and regulatory framework of the increasingly privatized public mental health services system adequately protects patients' rights; how notions of therapeutic jurisprudence influence the behavior of judges and lawyers; and the means by which judges, lawyers, and clinicians can work from a more therapeutic frame of reference in the context of civil commitment proceedings. It is maintained that this volume will be useful to specialists in law, psychology, and psychiatry who are involved in mental health law and policy.
Law and the Modern Mind
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In postrevolutionary America, the autonomous individual was both the linchpin of a young nation and a threat to the founders' vision of ordered liberty. Conceiving of self-government as a psychological as well as a political project, jurists built a republic of laws upon the Enlightenment science of the mind with the aim of producing a responsible citizenry. Susanna Blumenthal probes the assumptions and consequences of this undertaking, revealing how ideas about consciousness, agency, and accountability have shaped American jurisprudence. Focusing on everyday adjudication, Blumenthal shows that mental soundness was routinely disputed in civil as well as criminal cases. Litigants presented conflicting religious, philosophical, and medical understandings of the self, intensifying fears of a populace maddened by too much liberty. Judges struggled to reconcile common sense notions of rationality with novel scientific concepts that suggested deviant behavior might result from disease rather than conscious choice. Determining the threshold of competence was especially vexing in litigation among family members that raised profound questions about the interconnections between love and consent. This body of law coalesced into a jurisprudence of insanity, which also illuminates the position of those to whom the insane were compared, particularly children, married women, and slaves. Over time, the liberties of the eccentric expanded as jurists came to recognize the diversity of beliefs held by otherwise reasonable persons. In calling attention to the problematic relationship between consciousness and liability, Law and the Modern Mind casts new light on the meanings of freedom in the formative era of American law.
Criminal Mental Health and Disability Law, Evidence and Testimony
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A legal history of mental health and disability discrimination in the criminal justice system -- Mental health and disability law overview -- Criminal incompetency -- Insanity and diminished culpability -- Dangerousness in the criminal law -- Jails, prisons, and secure "treatment" facilities: conditions of confinement and release -- Admissibility of expert evidence and testimony -- Mental health diagnoses and assessments -- Criminal incompetency -- Evidence of insanity and diminished culpability -- Dangerousness to others and self -- Care and treatment of inmates -- Disability discrimination involving inmates in corrections facilities
The Criminalization of Mental Illness
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For a myriad of reasons the criminal justice system has become the de facto mental health system in the United States. The third edition of The Criminalization of Mental Illness thoroughly explains these reasons, and describes in detail specialized law enforcement responses to people with mental illness (PWMI), mental health courts, jails and prison conditions, and discharge planning for this group. The third edition also includes examples of crises involving PWMI that end up driving policy, examines how therapeutic jurisprudence can be utilized to improve responses to PWMI and to ameliorate the inhumane and costly recycling of PWMI through the criminal justice system, and provides insight from criminal justice practitioners, in their own words, about the challenges both PWMI and practitioners face in the system and efforts to overcome them. This edition also examines the tension throughout the system when attempting to balance public safety and civil liberties. The concept of defunding the police and the impact of the Affordable Care Act on PWMI are considered as well. Compared to the second edition, the third edition is streamlined, with 11 total chapters (down from 13). It includes updated data on PWMI involved in the criminal justice system, a discussion of important events that have taken place since the publication of the second edition, as well as descriptions and analyses of key policies and practices enacted since that time. In short, it is the most comprehensive and up-to-date volume for students, academics, and practitioners interested in these crucial issues.
The Hidden Prejudice
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In ""The Hidden Prejudice"", Michael L. Perlin reveals a pattern of prejudice against mentally disabled individuals that keeps them from receiving equal treatment under the law. ""Sanism"", like racism, is a prejudice against a minority population. This mostly hidden prejudice against mentally ill people has pervaded Western culture throughout history and continues to affect our culture and legal system. Under the pretext of ""improving"" society, a judge, lawyer or fact-finder may rationalize turning a blind eye to faulty evidence and render a sanist decision. The pretext for this testimonial dishonesty is that the end result justifies the means. In cases involving the mentally disabled, these results are founded on the prejudicial belief that the mentally disabled are not responsible for or intelligent enough to deserve full rights of citizenship. Perlin argues that these sanist decisions, rationalized on ""pretextuality"", are much more common than most of us are likely to realize. This book first details the roots of sanism and pretextuality and how these two phenomena have distorted and corrupted mental disability law. The author then describes how therapeutic jurisprudence, or the healthful and helpful use of the law, can work toward ridding the system of the hidden prejudice of sanism and pretextuality. This book seeks to expand the thinking of forensic psychologists, legal professionals and mental health practitioners who work with the law or serve as expert witnesses in court.
Justice and the Prosecution of Old Crimes
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This volume questions how individuals and societies ought to deal with crimes committed in the distant past. Agency and responsibility on the part of the wrongdoer are weighed against forgiveness and mercy on the part of the victim. Examples are drawn from all areas of law.
Law and Psychiatry in the Criminal Justice System
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Discusses the relationship between law and mental health to criminal justice. While this work shares many qualities with traditional law casebooks, it also possesses elements of a treatise, as the authors' notes tend more toward the analytical than the expository and even offer conclusions.
A Lawyer's Guide to Understanding Psychiatry
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A Lawyer's Guide to Understanding Psychiatry focuses on providing a basic understanding of, and working familiarity with, the situations and terminology lawyers encounter in dealing with patients and clinicians. This information enables lawyers to frame better questions and more precisely identify facts pertinent to the case.The book begins with an overview of both Western Psychiatry and the Diagnostic and Statistical Manual. Subsequent chapters cover:* Pursuing the diagnosis* Neuroses and psychoses* Personality disorders* Psychotropic medications and other treatment options* Divination of future dangerousness
Confronting Mental Health Evidence
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Offers a case-based model to empower lawyers in managing difficult psychology-related issues in their cases and hold mental health experts accountable in court.
Mental Disability and the Death Penalty
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There is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities. There is clear, systemic bias at all stages of the prosecution and the sentencing process - in determining who is competent to be executed, in the assessment of mitigation evidence, in the ways that counsel is assigned, in the ways that jury determinations are often contaminated by stereotyped preconceptions of persons with mental disabilities, in the ways that cynical expert testimony reflects a propensity on the part of some experts to purposely distort their testimony in order to achieve desired ends. These questions are shockingly ignored at all levels of the criminal justice system, and by society in general. Here, Michael Perlin explores the relationship between mental disabilities and the death penalty and explains why and how this state of affairs has come to be, to explore why it is necessary to identify the factors that have contributed to this scandalous and shameful policy morass, to highlight the series of policy choices that need immediate remediation, and to offer some suggestions that might meaningfully ameliorate the situation. Using real cases to illustrate the ways in which the persons with mental disabilities are unable to receive fair treatment during death penalty trials, he demonstrates the depth of the problem and the way it's been institutionalized so as to be an accepted part of our system. He calls for a new approach, and greater attention to the issues that have gone overlooked for so long.
Minding Justice
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Minding Justice offers a comprehensive examination of the laws governing the punishment, detention, and protection of people with mental disabilities. Using famous cases such as those of John Hinckley, Andrea Yates, and Theodore Kaczynski, the book analyzes the insanity defense and related doctrines, the role of mental disability in sentencing, the laws that authorize commitment of "sexual predators" and others thought to be a threat to society, and the rules that restrict participation of mentally compromised individuals in the criminal and treatment decision-making processes. Arguing that current legal doctrines are based on flawed premises and ignorance of the impairments caused by mental disability, Christopher Slobogin makes a case for revamping the insanity defense, abolishing the "guilty but mentally ill" verdict, prohibiting execution of people with mental disability, restructuring preventive detention, and redefining incompetency. A milestone in criminal mental health law, Minding Justice provides innovative solutions to ancient problems associated with criminal responsibility, protection of society from "dangerous" individuals, and the state's authority to act paternalistically.
The Myth of a Psychiatric Crime Wave
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The media is full of disturbing scenes of deranged, psychotic killers lurking around every corner, waiting to attack when innocent victims least expect. Despite the unrealistic nature of these scenes, the ensuing fear results in very real, often-shortsighted, attempts at protecting the public from the perceived danger that mentally ill persons in our communities represent.
The Myth of a Psychiatric Crime Wave provides a practical foundation for studying popular attitudes toward mental illness and the effects these notions have on mental health consumers. Additionally, the text provides a comprehensive analysis of the underlying assumptions about mental illness that, unintentionally or otherwise, influence legal and policy decisions affecting persons with mental illnesses.
This book begins with an exploration of the various psychological and legal efforts to define the concept of mental illness. The text then examines the myth of a psychiatric crime wave -- the common belief that mentally ill persons are violent and dangerous and, as such, are managed effectively through criminal justice procedures. The criminal image of persons with mental illness is addressed, then leads the reader to an empirical analysis of mock juror sentencing recommendations for mentally ill defendants.
The Myth of a Psychiatric Crime Wave is an effective complementary text for upper-level psychology and criminal justice courses dealing with the treatment of mental health consumers, the management of these individuals, or both. Moreover, this text is suited for sparking critical discourse in graduate-level courses in forensic psychology, criminology, and mental health law.
This book is part of the Criminal Justice and Psychology series.
A Prescription for Dignity
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Demonstrating how the question of treatment of persons with mental disabilities in the criminal justice system is not only a vital one for both scholars and practitioners, but also a central facet of international human rights law, this book suggests policy development.
Psychiatric and Psychological Evidence
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Part one: Basic introduction to psychology and psychiatry; theories of mental illness, how diagnosed and treated; fundamentals of psychiatric and psychological professions; how to research literature. Part two: Rules of evidence that apply; obtaining and presenting evidence, qualifying experts, limitations on evidence. Part three: Applying psychiatric and psychological evidence to criminal proceedings, legal issues involving children, and competence proceedings.
Making Medical Decisions for the Profoundly Mentally Disabled
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A legal and moral analysis of medical decision making on behalf of those with such severe cognitive impairments that they cannot exercise self-determination. In this book, Norman Cantor analyzes the legal and moral status of people with profound mental disabilities--those with extreme cognitive impairments that prevent their exercise of medical self-determination. He proposes a legal and moral framework for surrogate medical decision making on their behalf. The issues Cantor explores will be of interest to professionals in law, medicine, psychology, philosophy, and ethics, as well as to parents, guardians, and health care providers who face perplexing issues in the context of surrogate medical decision making. The profoundly mentally disabled are thought by some moral philosophers to lack the minimum cognitive ability for personhood. Countering this position, Cantor advances both theoretical and practical arguments for according them full legal and moral status. He also argues that the concept of intrinsic human dignity should have an integral role in shaping the bounds of surrogate decision making. Thus, he claims, while profoundly mentally disabled persons are not entitled to make their own medical decisions, respect for intrinsic human dignity dictates their right to have a conscientious surrogate make medical decisions on their behalf. Cantor discusses the criteria that bind such surrogates. He asserts, contrary to popular wisdom, that the best interests of the disabled person are not always the determinative standard: the interests of family or others can sometimes be considered. Surrogates may even, consistent with the intrinsic human dignity standard, sometimes authorize tissue donation or participation in nontherapeutic medical research by profoundly disabled persons. Intrinsic human dignity limits the occasions for such decisions and dictates close attention to the preferences and feelings of the profoundly disabled persons themselves. Cantor also analyzes the underlying philosophical rationale that makes these decision-making criteria consistent with law and morals.
Challenges to the Human Rights of People with Intellectual Disabilities
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'A book such as this both demonstrates the progress that has been made over recent years, and will also serve to enhance respect for the human rights of persons with intellectual disabilities in the years to come.'- From the Foreword by Orville EndicottThis wide-ranging volume provides a multidisciplinary examination of human rights and the lives of people with intellectual disabilities. The book combines historical, psychological, philosophical, social, educational, medical and legal perspectives to form a unique and insightful account of the subject. Initial chapters explain the historical context of rights for people with intellectual disabilities, including the right to life, and propose a conceptual framework to inform contemporary practice. Contributors then explore the many theoretical and practical challenges that people with intellectual disabilities face, in exercising their civil rights, educational rights or participatory rights, for instance. The implications arising from these issues are identified and practical guidelines for support and accommodation are provided.This book will be an essential resource for practitioners, advocates, lawyers, policy-makers and students on disability courses.
International Human Rights and Mental Disability Law
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Society is largely blind-often willfully blind-to the ongoing violations of international human rights law when it comes to the treatment of persons with mental disabilities. Despite a robust set of international law principles, standards and doctrines, and the recent ratification of theUnited Nations' Convention on the Rights of Persons with Disabilities, people with mental disabilities continue to live in some of the harshest conditions that exist in any society. These conditions are the product of neglect, lack of legal protection against improper and abusive treatment, andsocial attitudes that demean, trivialize and ignore the humanity of persons with disabilities.International Human Rights and Mental Disability Law: When the Silenced are Heard draws attention to these issues in order to shed light on deplorable conditions that governments continue to ignore, and to invigorate the debate on a social policy issue that remains a low priority for most of theworld's nations. Examining the mistreatment of persons with mental disabilities around the world, Michael Perlin identifies universal factors that contaminate mental disability law, including lack of comprehensive legislation and of independent counsel; inadequate care; poor or nonexistent communityprogramming; and inhumane forensic systems. Using examples from Western and Eastern Europe, South America, Africa and Asia, Perlin examines and summarizes the growing field of international mental health law, arguing that governmental inaction demeans human dignity, denies personal autonomy, anddisregards the most authoritative and comprehensive prescription of human rights obligations.As Perlin argues, these issues pertain to all citizens of the world who value human rights and who care about how we treat those of us who may be most vulnerable. International Human Rights and Mental Disability Law is an indispensable resource for scholars, policymakers, governmental officials, andmental health professionals who care about the treatment of those with disabilities, and to human rights advocates and activists worldwide.
A Prescription for Dignity
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Demonstrating how the question of treatment of persons with mental disabilities in the criminal justice system is not only a vital one for both scholars and practitioners, but also a central facet of international human rights law, this book suggests policy development.
Coercive Measures in Forensic Psychiatric Care
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This book presents the legal context and describes the ethical and practical challenges when using coercive measures in forensic psychiatric settings. A wide range of aspects relevant to the use of such measures, including environmental, patient-related, and staff-related factors, are explored, and the experience of coercive interventions is described from the staff and the patient perspective. Differences in jurisdictions and examples of good practice are highlighted. The authors are from a range of professional backgrounds, ensuring breadth as well as depth in discussion of the topic. The use of coercive measures, in particular restraint, seclusion, and involuntary medication, for the control of aggression in psychiatry remains controversial. Forensic mental health care deals with individuals who pose a risk to others and often present with significant management problems within institutions. The care of patients in these settings gives rise to debates about the balance between care and safety, and between the interests of the patients and those of the wider society to be protected. Despite these tensions, limited research has been conducted specifically on the use of coercive measures in forensic mental health care. This volume aims to fill the gap and will be of value to all professionals working in forensic psychiatric settings as well as to those working in general psychiatric and custodial settings, law professionals, and patients.
Competence in the Law
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The best source for a comprehensive overview of mental competency in criminal, mental disability, and civil law, Competence in the Law prepares mental health professionals to assess questions of both civil and criminal competence and to counsel lawyers and judges in cases in which these issues are germane. A landmark contribution to forensic practice, this book equips you to expertly address critical issues faced in conducting assessments within the legal system.
Informed Consent
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Informed consent - as an ethical ideal and legal doctrine - has been the source of much concern to clinicians. Drawing on a diverse set of backgrounds and two decades of research in clinical settings, the authors - a lawyer, a physician, a social scientist, and a philosopher - help cliniciansunderstand and cope with their legal obligations and show how the proper handling of informed consent can improve , rather than impede, patient care. Following a concise review of the ethical and legal foundations of informed consent, they provide detailed, practical suggestions for incorporatinginformed consent into clinical practice. This completely revised and updated edition discusses how to handle informed consent in all phases of the doctor-patient relationship, use of consent forms, patients' refusals of treatment, and consent to research. It comments on recent laws and nationalpolicy, and addresses cutting edge issues, such as fulfilling physician obligations under managed care. This clear and succinct book contains a wealth of information that will not only help clinicians meet the legal requirements of informed consent and understand its ethical underpinnings, but also enhance their ability to deal with their patients more effectively. It will be of value to all thoseworking in areas where issues of informed consent are likely to arise, including medicine, biomedical research, mental health care, nursing, dentistry, biomedical ethics, and law.
Refusing Care
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It has been said that how a society treats its least well-off members speaks volumes about its humanity. If so, our treatment of the mentally ill suggests that American society is inhumane: swinging between overintervention and utter neglect, we sometimes force extreme treatments on those who do not want them, and at other times discharge mentally ill patients who do want treatment without providing adequate resources for their care in the community. Focusing on overinterventionist approaches, Refusing Care explores when, if ever, the mentally ill should be treated against their will. Basing her analysis on case and empirical studies, Elyn R. Saks explores dilemmas raised by forced treatment in three contexts--civil commitment (forced hospitalization for noncriminals), medication, and seclusion and restraints. Saks argues that the best way to solve each of these dilemmas is, paradoxically, to be both more protective of individual autonomy and more paternalistic than current law calls for. For instance, while Saks advocates relaxing the standards for first commitment after a psychotic episode, she also would prohibit extreme mechanical restraints (such as tying someone spread-eagled to a bed). Finally, because of the often extreme prejudice against the mentally ill in American society, Saks proposes standards that, as much as possible, should apply equally to non-mentally ill and mentally ill people alike. Mental health professionals, lawyers, disability rights activists, and anyone who wants to learn more about the way the mentally ill are treated--and ought to be treated--in the United States should read Refusing Care.
