Psychiatry & The Law
Topics of relevance as identified by the
American Board of Psychiatry & Neurology Board Certification Examination Content Outline.
Learn Forensic Psychiatry is not affiliated with nor endorsed by ABPN.
Psychiatric Hospitalization
Involuntary Psychiatric Hospitalization
Legal Basis
Parens Patriae: state acts as a “parent” to its people, with the duty and the right to act in their best interests (paternalistic)
Police Power: the state’s authority and interest in protecting the health and safety of the public.
Commitment Procedures
Governed by statute and case law.
The Treatment Advocacy Center maintains a database of treatment laws by state.
Generally allow for a brief hospitalization or hold via emergency certification, followed by a formal commitment if appropriate.
Due Process protections include the right to representation, a hearing, and appeal.
Evolution of Historical Commitment Standards
1800s- Institutionalization
Psychiatric hospitalization was often at the request of family, and based on the doctor’s judgment of a need for treatment (Parens Patriae approach)
Focus on custodial care, not treatment.
Few legal protections; Habeas corpus could be used to challenge detention.
1845 Matter of Josiah Oakes found that arbitrary detention without justification is unconstitutional; detention can only continue for as long as is needed for safety of patient and others.
Mid 1900s- Rise of Civil Liberties
Growing criticism of inhumane conditions in psychiatric facilities, with mental health reform influenced by the civil rights movement.
1960s-1970s Deinstitutionalization & Legal Reform
Emptying out of state hospitals in favor of community treatment.
Shift away from Parens Patriae towards Police Power, with commitment standards favoring dangerousness rather than a need for treatment.
Stricter commitment standards and development of greater procedural protections.
CA Lanterman-Petris-Short Act, 1969: civil commitment requires imminent dangerousness to self or others, or grave disability to the extent of inability to meet minimal survival needs.
Least Restrictive Alternative
Patients who are not dangerous cannot be confined if a less restrictive alternative is available. (Lake v. Cameron, 1966)
Standard of Proof for Civil Commitment
Clear and convincing evidence (Addington v. Texas, 1979)
Due Process/ Dangerousness
Patients found Incompetent to stand trial cannot be committed for more time than is reasonably necessary to determine whether there is a substantial probability of restoration in the foreseeable future. The nature and duration of commitment must bear a reasonable relation to the purpose of commitment.
A state cannot constitutionally confine, without more, a non dangerous individual capable of surviving safely alone or with the help of friends or family.
Restricted inpatient commitment to those who are both mentally ill and dangerous
Has been interpreted by states to mean that dangerousness is a constitutional requirement for commitment, OR that nondangerous psychiatric patients cannot be confined without treatment.
For voluntary psychiatric admission of minors, a postadmission legal hearing is not required; a neutral fact finder (physician) can determine appropriateness.
Failure to provide community treatment is discriminatory. Public entities (such as state hospitals) must provide community-based services to those with disabilities when the services are:
Appropriate
Not opposed by the involved individuals.
Reasonably able to be accommodated, considering availability of public resources and the needs of others receiving services from the entity.
Patients must be competent in order to provide valid consent to voluntary psychiatric admission.
Patients undergoing civil commitment proceedings have the same rights to Due Process as those afforded during criminal proceedings.
Patient Rights
Civil Rights of Institutionalized Persons Act (CRIPA) - 1980
The US Government may take civil action against states whose officials or employees are subjecting institutionalized patients to egregious or flagrant conditions which deprive them of constitutional or legal rights, privileges, or immunities, causing them to suffer grievous harm.
Protection and Advocacy of Individuals with Mental Illness Act (PAIMI) - 1986
Established a federally funded program, administered by SAMHSA, to protect and advocate for the rights of those with mental illness..
Investigates abuse and neglect, provides legal advocacy, and promotes education and outreach.
Outpatient Commitment
Assisted Outpatient Treatment (AOT) / Outpatient Commitment (OPC)
Court ordered, legally mandated community mental health treatment.
Aims to promote stability and recovery, as well as prevent poor outcomes related to lack of treatment, including relapse, hospitalization, homelessness, and involvement in the criminal justice system.
Attempts to engage patients with a history of serious mental illness, frequent hospitalizations, and treatment nonadherence.
Nonadherence with structured community treatment plan may lead to hospitalization, but not criminal penalties.
Exists in theory in the majority of states, however funding and availability of resources impacts effectiveness of programs.
Right to Treatment
Legal Basis for Right to Treatment
There is no explicit constitutional right to mental health treatment, and the Supreme Court has neither accepted nor rejected such a right.
Courts have interpreted a right to treatment in certain situations, such as for patients under civil committment, in institutional settings, or in government custody.
Right to treatment has been derived from:
8th Amendment- Protection from Cruel & Unusual Punishment
14th Amendment- Due Process & Equal Protection
Quid Pro Quo (treatment in exchange for confinement)
Least Restrictive Alternative
Right to Treatment
Insanity acquittees who are civilly committed have a right to treatment, as the purpose of the commitment is treatment, not punishment.
States cannot confine, without more, a non-dangerous individual who is capable of surviving safely alone or with assistance from friends and family.
Some states interpret “without more” to mean “without treatment”
Didn’t explicitly accept, nor reject, a constitutional right to treatment.
Prisoners have a constitutional right to medical treatment under the 8th Amendment, as loss of liberty prevents them from seeking care.
Minimal Inpatient Treatment Standards
A humane psychological and physical environment.
Qualified staff in sufficient numbers for adequate treatment.
Individualized treatment plans.
Under the Due Process Clause of the 14th Amendment, institutionalized persons have a right to:
Safe conditions of confinement.
Freedom from unreasonable bodily restraint.
Adequate training or habilitation, as reasonably required, to reduce the need for restraint.
Standard for whether duty was met by facility is professional judgment.
Civil Rights of Institutionalized Persons Act (CRIPA) - 1980
The US Government may take civil action against states whose officials or employees are subjecting institutionalized patients to egregious or flagrant conditions which deprive them of constitutional or legal rights, privileges, or immunities, causing them to suffer grievous harm.
Enforcement includes consent decrees, formal agreements between the DOJ and state institutions to correct civil rights violations, improving treatment conditions.
Right to Community Treatment
Patients have a right to receive treatment in the least restrictive setting (Lake v. Cameron, 1966)
ADA Title II (Public Services)
Prohibits exclusion of people with disabilities from services, programs, and activities provided by public entities in the most integrated setting appropriate to the needs of those with disabilities.
Requires that reasonable accommodations be made unless they would fundamentally alter the nature of the program.
Promotes community treatment & deinstitutionalization.
For people with disabilities, community based treatment, rather than institutionalization, is required when it’s medically appropriate, not opposed by the patient, and reasonably able to be accommodated given available resources and the needs of others with disabilities.
Right to Refuse Treatment
Legal Basis for Right to Refuse Treatment
1st Amendment- Free Speech
8th Amendment- Freedom from Cruel & Unusual Punishment
14th Amendment- Due Process Clause
Substantive Due Process protects the right to bodily autonomy and the right to make personal decisions.
Procedural Due Process provides procedural protections prior to involuntary confinement or treatment, which include notice of proposed treatment or commitment, the right to a hearing, the right to legal representation, and judicial oversight.
Right to Privacy (1st, 4th, 5th, 9th)
Informed Consent
Case Law
Application of the President of Georgetown College v. Jones, 1964
In DC, an incompetent patient’s refusal of emergency life-saving treatment for religious reasons was overridden by imminent danger of death.
States cannot confine, without more, a non-dangerous individual who is capable of surviving safely alone or with assistance from friends and family.
Represents a treatment-driven model.
Proxy Decision-Maker: Medical Professional
Civilly committed psychiatric patients have a right to refuse treatment.
Standard to override treatment refusal for danger to self/others is professional judgment, unless such judgment substantially departs from accepted professional judgment, practice, or standards.
Represents a rights-driven model.
Proxy Decision-Maker: Judicial
In non-emergency situations, formal determinations of competency and substituted judgment are required prior to overriding a civilly committed psychiatric patient’s treatment refusal.
There are certain exceptions, including situations involving imminent threat of harm to self or others, with no less restrictive alternative, or to prevent imminent, substantial, and irreversible deterioration of mental illness.
Allows for physician discretion with respect to likelihood of physical harm and deterioration without medication.
Prisoners have a right to Due Process protections for treatment over objection, which must be balanced with prison safety and security interests.
Overriding a convicted prisoner’s treatment refusal requires dangerousness to self/others and medical appropriateness.
Due Process does not require a judicial hearing prior to overriding treatment refusal for dangerous prisoners, medical professionals may serve as decision-makers.
Due Process was fulfilled by providing notice of a hearing, right to representation, and right to appeal.
Forced treatment with antipsychotic medications of a defendant standing trial is prohibited unless both medically appropriate for ensuring the safety of the defendant/others and the least intrusive option.
Forced treatment with antipsychotic medications is permissible for competency restoration of a defendant if certain criteria are met, including:
Important government interests at stake
Treatment is medically appropriate, the least intrusive alternative, likely to render the defendant competent, and substantially unlikely to have side effects that significantly interfere with the defendant’s ability to assist counsel.
Models for Treatment Refusal
Rules governing treatment refusal vary by jurisdiction.
Rights-Driven Model
Prioritize patient autonomy and civil liberties and protecting the right to make decisions about treatments.
Emphasis on informed consent and presumption of competence.
Competent patients have a right to refuse treatment outside of emergency situations.
For incompetent patients, treatment decisions are made by a judge or guardian.
Substituted Judgment: decision based on what the patient would have chosen for themselves based on their preferences and values.
Treatment-Driven Model
Prioritize mental and physical health, appropriate treatment, beneficence, & non-maleficence.
Medical decision makers determine what’s in the patient’s best interest if they lack capacity or represent a danger to self/others.
Treatment refusal may be overridden by clinicians (such as psychiatrists), and review procedures are informal.
Exceptions to Right to Refuse Treatment
Rules governing treatment refusal vary by jurisdiction.
Involuntary psychiatric commitment
Emergency treatment
Privacy, Confidentiality, & Privilege
Confidentiality
Ethical principle, protects privacy in clinical settings.
There is a right to confidentiality in the physician-patient relationship (Doe v. Roe, 1977)
Physicians must maintain in confidence all patient disclosures regarding their physical or mental condition, as well as all matters discovered in the course of treatment.
All communications and records must be kept secure and private.
Confidential information may only be released through patient authorization or legal compulsion.
Exceptions:
Imminent risk of harm to self or others. (suicide or homicide)
Mandatory reporting of suspected abuse of a child, elder, or vulnerable adult. (Reporting statutes override federal confidentiality law)
Court order or subpoena
Therapist-Patient Testimonial Privilege
Procedural principle; protects privacy in legal settings.
A patient’s right to prevent their therapist from testifying in court.
Legal Basis
Confidential communication between a therapist and their patient over the course of diagnosis and treatment is protected from compelled disclosure under FRE Rule 501.
Federal Rules of Evidence (FRE) Rule 501
Permits federal courts to define new privileges by interpreting common law principles.
US Supreme Court established therapist-patient privilege under FRE Rule 501 by acknowledging therapy’s important role in society, and the need for confidence and trust for treatment to be effective.
Extended privilege to LCSWs, psychiatrists, and psychologists.
Therapist-patient privilege is not absolute (in re Lifschutz, 1970)
Need for confidentiality must be balanced with society’s need for truth in litigation.
Privilege belongs to the patient, not the therapist; the patient has the right to waive privilege.
Exceptions to privilege may include:
Proceedings for psychiatric hospitalization
Court-ordered examinations
Patient makes their mental or emotional state an element of a legal claim or defense.
Legal proceedings against the physician (malpractice, fraud, medical board investigation)
Furtherance of crime
Prevention of death or substantial bodily harm to a third party (Duty to Protect)
Duty to Warn/Protect
Duty to Warn/Protect
In the US, people are not responsible for harm to a third party caused by the violence of another unless a special relationship is present.
The relationship between mental health professionals and their patients is considered a special relationship.
Mental health professionals are obligated by law to protect third parties from harm by dangerous patients.
The specific requirements and scenarios in which they apply varies by jurisdiction.
May be required to take actions to prevent harm, such as:
Assessing need for psychiatric hospitalization.
Disclosing threat to law enforcement or notifying the intended victim.
Reporting as required by gun control laws.
Legal Basis
Statutes
Rules vary from one state to another.
Case Law
Initial Precedent: Tarasoff v. Regents of the University of California
Tarasoff I, 1974: Duty to Warn
Established that mental health professionals must notify law enforcement and/or the intended victim when a patient represents a serious risk of harm to a third party.
Heavily criticized by professional organizations, thus case was reheard. (Tarasoff II)
Tarasoff II, 1976: Duty to Protect
Replaced Tarasoff I “Duty to Warn” with “Duty to Protect.”
When a mental health professional determines (or should determine) that a patient presents a reasonable danger of violence to another, they are obligated to use reasonable care to protect the third party from danger. Discharge of this duty may require warning the victim or others likely to warn the victim, notifying law enforcement, or taking whatever steps are reasonably necessary.
Duty to Detain: Lipari v. Sears, 1980
Extended the duty to protect to third parties belonging to a foreseeable class, not just specifically identifiable persons.
Informed Consent
Informed Consent: the process of providing voluntary agreement to a proposed treatment after a discussion of the risks, benefits, and alternatives, including no treatment. Consent may be withdrawn at any time.
Elements of Informed Consent
Disclosure of Information
Explanation of treatment and goals
Risks and benefits of treatment
Alternative treatments, including no treatment
Voluntariness (free from coercion & duress)
Capacity to Consent (Appelbaum Criteria)
Does the patient have the ability to understand relevant information about the nature of the condition, proposed treatments, & risks/benefits?
Does the patient appreciate how this information applies to their personal circumstances?
Can the patient reason about treatment options and their consequence?
Can they communicate a choice that is clear and consistent?
Foundations of Informed Consent
14th Amendment Substantive Due Process protects personal liberties and bodily autonomy.
Ethical principles of autonomy, beneficence, and non-maleficence.
Defined the standard for informed consent as the reasonable person standard.
Reasonable Person Standard: a physician must disclose that which a reasonable person would consider material to the decision.
Exceptions to Informed Consent
Medical Emergencies
Lack of Capacity or Incompetence
Requires a surrogate decision-maker.
Minors generally can’t consent to medical treatment, thus parental consent is required. There may be exceptions for reproductive health and substance use treatment.
Therapeutic Privilege
Withholding information may be permissible in limited circumstances if disclosure would be detrimental to a patient’s wellbeing.
Patient Waiver
Involuntary Treatment
Advance Directives
Legal documents through which patients may make medical decisions in advance such that their wishes and preferences are respected in the event that they become incapacitated.
Living Will
Outlines preferences for treatment in the event of incapacitation.
May include preferences for life-sustaining treatment, such as CPR, mechanical ventilation, and tube feeding.
Durable Power of Attorney (DPOA)
Designates a specific person (Healthcare Proxy) to make decisions on the patient’s behalf in the event of incapacitation.
Healthcare Proxy makes decisions based on substituted judgment, or if preferences are unknown, in patient’s best interest.
Do Not Resuscitate (DNR) Orders
Extraordinary Treatments
In certain jurisdictions, additional review may be required for treatments such as ECT, psychosurgery, or sterilization procedures.
Civilly committed psychiatric patients cannot provide valid informed consent to experimental psychosurgery.
Only applies to experimental psychosurgery, not medical treatment.
Withdrawal of Life-Sustaining Treatment
Cruzan v. Director, Missouri DMH, 1990
A state may require clear and convincing evidence of an incompetent individual’s desire to withdraw life-sustaining treatment before the family may withdraw life support for that individual.
Medical Board Issues
Medical Boards
States have authority to regulate the practice of medicine through Medical Practice Acts (MPAs)
Medical Board Investigations
Medical boards may investigate a physician for reasonable suspicion of potential impairment.
Impairment: a condition which impacts a physician’s ability to safely practice medicine.
Investigation Procedures
Physician notified by board after receipt of complaint, and provided an opportunity to respond in writing or at a meeting.
Malpractice insurers often provide representation for physicians for board complaints.
If impairment is suspected, board may refer physician to a Physician Health Program (PHP) for evaluation.
Possible outcomes of board complaints may include dismissal of the complaint, letter of concern, practice limitations, probation, license suspension, or license revocation. Reporting of sanctions may be required on future medical license applications.
National Practitioner Data Bank
Confidential federal database of information about healthcare practitioners.
Provides practice information to potential employers and credentialing bodies; not available to patients.
Contains information about malpractice settlements & judgments, licensing actions, clinical privilege actions, exclusions from Medicare and Medicaid, professional society actions, and other professional misconduct.
Research
Common Rule (45 C.F.R. 46)
Set of federal regulatory standards for human subjects research from Health and Human Services (HHS)
Establishes requirements for Institutional Review Boards (IRBs), informed consent, and other protections for research study participants.
Protects vulnerable populations, such as children, pregnant women, prisoners, and people with cognitive impairments.