Legal and Ethical Issues

Kimberley ClowKimberley Clow

kclow2@uwo.cakclow2@uwo.ca

http://instruct.uwo.ca/psychology/155b/http://instruct.uwo.ca/psychology/155b/

Outline

Legal IssuesLegal Issues Criminal CommitmentCriminal Commitment

Tests of Mental StateTests of Mental State Civil Commitment Civil Commitment

Rights of PatientsRights of Patients Ethical IssuesEthical Issues

PrivacyPrivacy ConfidentialityConfidentiality

Limitations Limitations Dual RelationshipsDual Relationships

Criminal Commitment

Being incarcerated for Being incarcerated for committing a crimecommitting a crime We have free willWe have free will Responsible for our choicesResponsible for our choices Suffer the consequences of our Suffer the consequences of our

actionsactions Issues arise when individualsIssues arise when individuals

Aren’t aware of the consequences to Aren’t aware of the consequences to their actionstheir actions

Are not freely choosing to perform Are not freely choosing to perform certain actionscertain actions

Mental State of Defendant

Insanity DefenceInsanity Defence M’Naughten RuleM’Naughten Rule Durham RuleDurham Rule Irresistible Impulse TestIrresistible Impulse Test American Law Institute RuleAmerican Law Institute Rule

Competency to Stand TrialCompetency to Stand Trial Factual understanding?Factual understanding? Rational understanding?Rational understanding? Able to consult with counsel?Able to consult with counsel?

Little Known Facts

The Insanity Defence is used The Insanity Defence is used << 1% 1% Most often rejectedMost often rejected

Judges reject the plea about 50%Judges reject the plea about 50%Juries reject the plea 85%Juries reject the plea 85%

When plea is successfulWhen plea is successful<<15% are murder charges15% are murder charges

““Not guilty by reason of insanity”Not guilty by reason of insanity” Do NOT go free!Do NOT go free! Confined to mental hospitalConfined to mental hospital

The Defense is Misperceived

Reforms

Since the Hinckley case …Since the Hinckley case … Rather than prove a defendant’s sanity, must Rather than prove a defendant’s sanity, must

now convince judge or jury that clients are now convince judge or jury that clients are insaneinsane

Restrict use of defenseRestrict use of defense Connecticut doubled the average term spent in Connecticut doubled the average term spent in

institutionsinstitutions Idaho, Montana, & Utah abolished the defense!Idaho, Montana, & Utah abolished the defense!

““Guilty but Mentally Ill” Plea has emergedGuilty but Mentally Ill” Plea has emerged

Civil Commitment But you can be committed to an institution But you can be committed to an institution

against your will even if you didn’t commit against your will even if you didn’t commit a crime or do anything wronga crime or do anything wrong Criteria for Civil CommitmentCriteria for Civil Commitment

Person presents clear and imminent danger to self or Person presents clear and imminent danger to self or othersothers

Inability to care for selfInability to care for self Inability to make responsible decisionsInability to make responsible decisions

ProcedureProcedure Petition court for examinationPetition court for examination Formal hearing is heldFormal hearing is held

Rights of Treatment The Right to TreatmentThe Right to Treatment

The Least Restrictive Alternative to TreatmentThe Least Restrictive Alternative to Treatment The Right to a Humane EnvironmentThe Right to a Humane Environment Protection and Advocacy for Mentally Ill Protection and Advocacy for Mentally Ill

IndividualsIndividuals The Right to Refuse TreatmentThe Right to Refuse Treatment

Must have Must have informed consentinformed consent before conducting before conducting treatmenttreatment

Especially Especially risky or intrusive treatmentrisky or intrusive treatmentss Cannot force people to take antipsychotic medication in Cannot force people to take antipsychotic medication in

order to be competent to stand trialorder to be competent to stand trial

Ethics

What are the potential issues?What are the potential issues? Do no harmDo no harm Do not exploitDo not exploit Practice only within your competence Practice only within your competence Treat people with respect and dignityTreat people with respect and dignity Protect confidentialityProtect confidentiality Obtain informed consent firstObtain informed consent first Practice within the framework of social equity Practice within the framework of social equity

and justiceand justice

Other Ethical Issues PrivacyPrivacy

Limiting other’s access to informationLimiting other’s access to information Assuring freedom from intrusionsAssuring freedom from intrusions

ConfidentialityConfidentiality Refers to legal rules and ethics that protect Refers to legal rules and ethics that protect

individual from unauthorised disclosure of this individual from unauthorised disclosure of this informationinformation

PrivilegePrivilege An exception to the general rule that the public has a An exception to the general rule that the public has a

right to relevant evidence in a court proceedingright to relevant evidence in a court proceeding

Limits on Confidentiality

Confidentiality, however, is not a RIGHTConfidentiality, however, is not a RIGHT We strive to provide confidentiality, because it We strive to provide confidentiality, because it

is important, but there are a number of is important, but there are a number of situations that can arise where confidentiality is situations that can arise where confidentiality is brokenbroken

Limits on ConfidentialityLimits on Confidentiality Mandatory ReportingMandatory Reporting Duty to WarnDuty to Warn Duty to ProtectDuty to Protect Legal System ExceptionsLegal System Exceptions

How to Act?

Consider the following:Consider the following: Describe parameters of situation Describe parameters of situation Define the potential issues involved Define the potential issues involved Consult Consult any existing any existing guidelinesguidelines Evaluate the rights, Evaluate the rights, responsibilitiesresponsibilities, and welfare , and welfare

of of all all affected parties affected parties Generate alternativeGenerate alternativess for each issue for each issue Calculate consequences of all alternativesCalculate consequences of all alternatives

Based on evidence, not just conjecture!Based on evidence, not just conjecture! Choose the lesser of the evilsChoose the lesser of the evils

Dual Relationships

Dual RelationshipsDual Relationships When the therapist is in another, significantly When the therapist is in another, significantly

different relationship with one of his or her different relationship with one of his or her clientsclients

social, financial, professional, sexualsocial, financial, professional, sexual

Problems with Dual RelationshipsProblems with Dual Relationships Conflict of interestConflict of interest Power differentialPower differential

Sexual relationships are NOT permitted!!!Sexual relationships are NOT permitted!!!

Therapist Sex Differences

BehaviourBehaviour Sex Sex DifferenceDifference

Hugging a clientHugging a client F>MF>M

Having client use your first nameHaving client use your first name F>MF>M

Say to client, "I’m sexually attracted to you"Say to client, "I’m sexually attracted to you" M>FM>F

Treating homosexuality as pathologicalTreating homosexuality as pathological M>FM>F

Engaging in sexual fantasy about clientEngaging in sexual fantasy about client M>FM>F

Directly soliciting person to be clientDirectly soliciting person to be client M>FM>F